13-05 903
13-05 903
| Board of Vet. App. | Nov 4, 2017Background
- Veteran served active duty Mar 1976–May 1978 and appealed VA RO decisions to the Board.
- VA performed right-foot bunionectomy/osteotomies (Apr 9, 2003) and later hardware removal (Mar 10, 2004).
- Postoperative course showed throbbing pain, delayed/nonunion of the 5th metatarsal, possible osteomyelitis/avascular necrosis, painful calluses, and deformity; bone stimulator and antibiotics were used.
- Veteran claimed VA error and alleged wrong bone removal; he filed a § 1151 claim in June 2010 for additional right-foot disability from the VA surgeries; he also claimed a left-foot disorder related to service.
- VA obtained a May 2011 exam and a December 2015 independent opinion; consent forms and treatment records documented that risks (including infection, recurrence of deformity, numbness) were explained and that the Veteran consented.
- Board found the additional right-foot disabilities were reasonably foreseeable outcomes, that VA obtained informed consent and exercised appropriate care, and thus denied compensation under 38 U.S.C. § 1151; the left-foot service-connection claim was remanded for a new opinion addressing lay statements and rationale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to compensation under 38 U.S.C. § 1151 for additional right-foot disability from Apr 2003 and Mar 2004 VA surgeries | Surgeries caused additional right-foot disability (wrong bone removal, nonunion, calluses) warranting § 1151 compensation | VA contends the outcomes were reasonably foreseeable complications, informed consent was obtained, and care met the standard, so § 1151 not triggered | Denied: Board found informed consent, no VA fault, and outcomes were reasonably foreseeable; § 1151 criteria not met |
| Service connection for a left-foot disorder | Veteran contends left-foot disorder was caused by service (including military footwear) | VA’s July 2015 exam opinion was conclusory and relied on absence of service records; VA seeks adequate medical nexus opinion | Remanded: Board ordered an addendum exam addressing lay statements and providing a detailed rationale |
Key Cases Cited
- Grantham v. Brown, 114 F.3d 1156 (Fed. Cir.) (holding that a full grant during appeal requires a new NOD to preserve appellate review of downstream issues)
- Stefl v. Nicholson, 21 Vet. App. 120 (Vet. App.) (medical opinions must be adequate to satisfy VA’s duty to assist)
- Stegall v. West, 11 Vet. App. 268 (Vet. App.) (AOJ must comply with Board remand directives)
- Dalton v. Nicholson, 21 Vet. App. 23 (Vet. App.) (examiner may not rely solely on lack of contemporaneous records and must address claimant’s lay statements)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.) (absence of contemporaneous records does not necessarily undermine competent lay evidence)
- Kutscherousky v. West, 12 Vet. App. 369 (Vet. App.) (claimant may submit additional evidence on remand; remand matters must be handled expeditiously)