Stevenson v. McDonough
| Decision Date | 04 October 2022 |
| Docket Number | 20-4870 |
| Parties | Thomas Stevenson, Jr., Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Argued April 19, 2022
On Appeal from the Board of Veterans' Appealss
Maxwell D. Kinman, of Mason, Ohio, for the appellant.
Anita U. Koepcke, with whom Richard A. Sauber, General Counsel Mary Ann Flynn, Chief Counsel; and Sarah E. Wolf, Acting Deputy Chief Counsel, were on the brief, all of Washington D.C., for the appellee.
Before BARTLEY, Chief Judge, and TOTH and LAURER, Judges.
Veteran Thomas Stevenson, Jr., appeals through counsel a March 25, 2020, Board of Veterans' Appeals (Board) decision that denied entitlement to compensation under 38 U.S.C. § 1151 for an unhealed wound of the right abdomen. Record (R.) at 5-9. The appeal is timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Under section 1151(a), veterans may be compensated for additional disability arising from VA medical treatment.[1] This matter was referred to a panel of this Court, with oral argument,[2] to address the definition of "disability" as used in section 1151 and whether the term "additional disability" requires persistence of a disability for any particular time period. We conclude that the term "disability" in section 1151 carries the same meaning as in 38 U.S.C. § 1110. We also conclude that under section 1151 "additional disability "need not persist for any particular time period, and that additional disability that resolves during the pendency of a claim for section 1151 benefits does not foreclose entitlement to section 1151 compensation so long as the other requirements for entitlement under that section are met.
Because it is undisputed that Mr. Stevenson demonstrated additional disability during the pendency of his section 1151 claim, we will set aside the March 2020 Board decision, reverse the Board determination that the veteran did not demonstrate additional disability under section 1151, and remand this matter for readjudication consistent with this decision.
Mr. Stevenson served honorably in the U.S. Army from January 1968 to December 1970, including service in the Republic of Vietnam. R. at 13,390. Among other things, he is service connected for diabetes. See R. at 307.
In April 2012, Mr. Stevenson developed abdominal pain that was ultimately determined to be acute gall bladder inflammation (cholecystitis). See R. at 7220-21. On April 18, 2012, he underwent emergency gall bladder removal (cholecystectomy) at a VA medical center (VAMC). Id. Although the procedure was planned as laparoscopic, it was converted to traditional open surgery due to Mr. Stevenson's gangrenous gall bladder and peritonitis. R. at 10,308.
Following surgery, Mr. Stevenson developed pain at the incision site. See, e.g., R. at 9841 (June 2012 VA treatment record), 9690 (May 2013 VA treatment record), 9271 (July 2014 VA treatment record). In May 2013, he was diagnosed with scar neuroma and underwent treatment via trigger point injections. R. at 9690. Although the trigger point injections provided some relief, he continued to experience post-incisional scar pain.
On July 1, 2014, Mr. Stevenson underwent radiofrequency ablation (RF ablation)[3] by an anesthesiologist at a VAMC to treat the painful scar. R. at 9022, 9024-21, 9271; see R. at 901519, 9023-24 (consent documentation). He "tolerated the procedure well without any sign of complication," R. at 9024, 9271; see R. at 9022, 9030, and was discharged to home later that day, R. at 9030-31.
On July 8, 2014, Mr. Stevenson presented to the VAMC reporting clear discharge and swelling at the ablated area. The anesthesiologist cleaned the ablated area and applied triple antibiotic ointment and sterile gauze. R. at 9271.
In August 2014, Mr. Stevenson presented to a VA community-based outpatient clinic with an open wound, bleeding, pain, and increased swelling at the RF ablation site and stated that he had received treatment at an emergency department twice in the preceding few days. R. at 9252. A VA doctor diagnosed dehiscence[4] of a portion of the cholecystectomy scar and documented an open wound in the right upper abdominal quadrant that was 3 centimeters (cm) long by 2 cm deep and was draining serosanguinous fluid. R. at 9247; see R. at 9227-28. The wound tested positive for methicillin-resistant Staphylococcus aureus (MRSA), and Mr. Stevenson was prescribed a 10-day course of antibiotic treatment. Id. Home health nursing care was also ordered for daily dressing changes. R. at 9228.
In September 2014, Mr. Stevenson filed a claim seeking compensation under section 1151 for a right-sided abdominal wound due to the July 2014 RF ablation procedure. At that time, he stated that following the ablation procedure, he "now ha[s] a painful hole in [his] stomach." R. at 9402.
Meanwhile, Mr. Stevenson's condition improved with antibiotic treatment and wound care. See R. at 9216-17. When he returned to the VAMC in February 2015 for a follow-up appointment, the VA clinician noted a completely healed wound without signs of herniation or infection. R. at 9150.
In September 2015, a VA regional office (RO) denied the section 1151 claim. R. at 900914. In January 2016, Mr. Stevenson filed a Notice of Disagreement, asserting that the VAMC was responsible for the MRSA infection and subsequent unhealed and painful wound. R. at 8984-85.
The course of procedural development, if any, between January 2016 and March 2018 is unclear. Suffice it to say that in March 2018, Mr. Stevenson elected into VA's modernized review process, selecting higher-level review at the RO. See R. at 6, 7533. In September 2018, the higher-level review adjudicator identified a duty-to-assist error and ordered that a VA examination be provided. R. at 7533.
In February 2019,[5] a VA examiner found no evidence of additional disability as the surgical wound was completely closed, healed, and stable. R. at 72 10-13, 7218-19. The examiner stated that a reopened wound following RF ablation for a scar neuroma is a known complication in patients with diabetes, like Mr. Stevenson, as wound healing in such patients tends to be slow and eventful. R. at 7219.
In March 2019, the RO issued a higher-level review decision denying the section 1151 claim because it found no evidence of additional disability proximately caused by VA treatment. R. at 6917-20. In April 2019, Mr. Stevenson filed a supplemental claim. R. at 6903-06. At that time, he did not dispute that his wound had healed but stated that he was seeking compensation for the period that the wound was open as it required home health nursing care and resulted in pain and suffering. R. at 6905; see R. at 6901 (May 2019 statement). In July 2019, the RO confirmed and continued its previous denial. R. at 305-06. In August 2019, Mr. Stevenson filed VA Form 10182 appealing to the Board and selecting the direct review docket. R. at 287.
In the March 2020 decision on appeal, the Board denied entitlement to compensation under section 1151, finding that the preponderance of the evidence demonstrated that Mr. Stevenson did not incur additional disability. R. at 5. In reaching its conclusion, the Board relied on the 2019 VA examiner's conclusion that there was no evidence of an unhealed wound. R. at 7. The Board stated that the examiner noted that his RF ablation caused swelling and required antibiotic ointment and wound care dressing changes. Id. Ultimately though, the Board concluded that, because Mr. Stevenson's wound healed, he did not establish additional disability under section 1151. R. at 7-8. This appeal followed.
Mr. Stevenson argues that the Board erred in concluding that he did not demonstrate additional disability. Appellant's Brief (Br.) at 5-8. He contends that the Board, and the 2019 VA examiner upon whose opinion the Board relied, improperly focused on whether he demonstrated additional disability at the time of the 2019 VA examination and failed to consider whether he had additional disability when he filed his claim. Id.; Oral Argument at 2:45-3:57. He analogizes section 1151 compensation to service-connected disability compensation and argues that the requirement for demonstrating current disability "'is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim.'" Appellant's Br. at 8 (quoting McClain v. Nicholson, 21 Vet.App. 319, 321 (2007)).
The Secretary argues that the Board properly found that Mr. Stevenson did not demonstrate additional disability because his condition prior to the July 2014 RF ablation procedure and his condition in October 2014, following August and September 2014 treatment, was the same. Secretary's Br. at 7-12; see Oral Argument at 21:19-21:59; 24:41-25:11; 58:20-59:14. He argues that Mr. Stevenson's condition resolved and so does not constitute additional disability warranting compensation under section 1151. Secretary's Br. at 10; Oral Argument at 28:17-28:56. The Secretary also asserts that the meaning of disability in section 1110 is not analogous to disability as used in section 1151. Secretary's Br. at 11; Oral Argument at 33:15-34:03; 54:04-54:58.
A. Legal Landscape
Obtaining compensation under section 1151 requires satisfying three elements. See Viegas v. Shinseki, 705 F.3d 1374 1377 (Fed. Cir. 2013). First, the veteran must incur additional disability not the result of willful misconduct. 38 U.S.C. § 1151(a). Second,...
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