Citation Nr: 1122263 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 05-01 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for residuals of a fractured left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, in which the RO denied compensation under 38 U.S.C.A. § 1151 for residuals of a fractured left wrist. In his November 2004 VA Form 9 (substantive appeal), the Veteran requested a hearing before a Veterans Law Judge sitting at the RO (Travel Board hearing). In correspondence dated in September 2005, the RO advised the Veteran that his hearing was scheduled for October 2005. In a September 2005 response, the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.704(e) (2010). In June 2007 and August 2008, the Board remanded the claim on appeal for further development. In January 2011, subsequent to issuance of the most recent supplemental statement of the case (SSOC), the Veteran submitted a copy of a portion of a November 2010 VA medical opinion. The Board notes that a copy of the complete November 2010 VA medical opinion had previously been associated with the claims file, and was considered in the December 2010 SSOC. In any event, in his April 2011 Informal Hearing Presentation (IHP), the Veteran's representative waived RO consideration of this evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2010). As a final preliminary matter, the Board notes that, in August 2008, the claim was remanded, in part, to obtain a medical opinion regarding the claim on appeal. The Veteran was afforded a VA examination in June 2010. The claims file includes the report of a June 2010 VA examination which includes the Veteran's name and social security number; however, review of the body of this examination report reflects that it pertains to a different Veteran (Veteran B.S.G., identified by name and social security number in the body of the report). A copy of the Veteran's June 2010 VA examination report was subsequently associated with the claims file in conjunction with a September 2010 VA examination addendum. The RO should take any appropriate action to ensure that the body of the June 2010 report of VA examination of Veteran B.S.G. is associated with the appropriate claims file. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran does not suffer from an additional left wrist disability as a result of VA treatment. CONCLUSION OF LAW The criteria for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for residuals of a fractured left wrist are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. In this case, the Veteran's claim for compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a fractured left wrist was received in February 2004. Thereafter, he was notified of the general provisions of the VCAA by the RO and the Appeals Management Center (AMC) in correspondence dated in March 2004, June 2007, and February 2009. These letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding the VCAA. Thereafter, the claim was reviewed and supplemental statements of the case were issued in April 2010 and December 2010. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). During the pendency of this appeal, the Court, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in February 2009. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. Pertinent VA and private treatment records have been obtained and associated with the claims file. The Veteran has also been provided with a VA examination and VA medical opinion in conjunction with the claim on appeal. As will be discussed below, the Veteran suffered a left wrist fracture in September 2003, which was initially treated at the UPMC-Lee Regional Hospital in Johnstown, Pennsylvania. He received VA treatment three days after this fracture. His current claim for compensation pursuant to 38 U.S.C.A. § 1151 pertains to his VA treatment received subsequent to this September 2003 fracture. The Board acknowledges that, in the August 2008 remand, the AMC/RO was instructed that, after securing the necessary release, it should obtain copies of any records not already associated with the claims file. At an absolute minimum, copies of all related X-rays taken at UPMC-Lee Regional Hospital were to be obtained so the medical state of the Veteran's left wrist immediately prior to the inception of VA treatment could be determined. In the February 2009 VCAA letter, the AMC asked the Veteran to complete a VA Form VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), for UPMC-Lee Regional Hospital. The Veteran submitted VA Forms 21-4142 regarding this facility in March 2009. The Board's review of these forms reflects that, despite the instruction that the form should be signed on page 2, with the appropriate block checked in item 9c, in each form, the Veteran signed on page 1, and did not check any block in item 9c. In November 2009, the AMC advised the Veteran that his March 2009 VA Form 21-4142 had been received, but asked that he complete and return the enclosed VA Form 21-4142 so that all related X-rays taken at that facility could be obtained. He did not subsequently return a new VA Form 21-4142 in regard to these records. The Board highlights that VA is only obligated to obtain records that are adequately identified and for which necessary releases have been received. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As the Veteran has not provided an additional release form for any additional records from UPMC-Lee Regional Hospital; it is not possible for VA to obtain them. In any event, the Veteran has reported, and the claims file reflects, that he received treatment for his left wrist at UPMC-Lee Regional Hospital on September 27, 2003. Treatment records and an X-ray report from that facility, dated September 27, 2003 were previously associated with the claims file. There is no indication that there are outstanding pertinent treatment records and/or X-ray reports from this facility which have not been associated with the claims file. Hence, no further action in regard to records from this facility is warranted. In his April 2007 Informal Hearing Presentation (IHP), the Veteran's representative asserted that action was required to determine if quality assurance records existed and, if so, whether they were relevant to the Veteran's claim. The representative further asserted that, if such records existed and were relevant to the claim, the duty to assist required their consideration. VA's General Counsel recently addressed the duty to assist in regard to quality assurance records, and held that, as a general matter the governing statutes and regulations do not authorize disclosure of VHA quality assurance records or documents for purposes of adjudicating a claim for benefits. VAOPGCPREC 1-2011 (April 19, 2011). However, 38 U.S.C.A. § 5103A requires the Board to make reasonable efforts to request from VHA any quality-assurance records or documents that are relevant to a claim, provided the claimant furnishes information sufficient to locate the records or documents, and, if VHA denies access to the records and documents on the basis that they are protected by 38 U.S.C.A. § 5705 and implementing regulations, to appeal VHA's denial to the Office of the General Counsel (OGC) under 38 C.F.R. § 17.506. Under 38 C.F.R. § 17.508(c), any quality-assurance record or document, whether confidential and privileged or not, may be provided to the General Counsel or any attorney within OGC, wherever located. If VHA and OGC conclude that the records and documents are protected by 38 U.S.C.A. § 5705 and implementing regulations, VA may not consider them and rely on them in the adjudication of the claim. If VHA or OGC concludes that the records and documents are not confidential and privileged, VA may consider them in adjudicating the claim. Id. In this case, neither the Veteran nor his representative has actually identified any relevant quality assurance records in existence. As information sufficient to identify and locate quality assurance records has not been provided, no further action in this regard is necessary. Moreover, even if quality assurance records did exist, there is no indication as to how they might be relevant to the present claim. In this regard, as will be discussed below, the probative evidence does not establish additional left wrist disability which was caused by VA treatment. Consequently, questions regarding fault are not for consideration in this claim, and, therefore, quality assurance records would not be relevant. In his April 2011 IHP, the Veteran's representative argued that, in the absence of written informed consent listing the claimed disability, the Veteran was entitled to a favorable resolution of his claim. In March 2004, the RO requested all evidence and documents pertinent to the Veteran's September 2003 treatment for a left wrist fracture from the Altoona VA Medical Center (VAMC), including documentation of the signed consent form. While the claims file does not include informed consent for the VA treatment which the Veteran alleges caused left wrist disability, as previously discussed, the probative evidence does not establish that the Veteran has additional left wrist disability which was caused by VA treatment. The issue of informed consent would only apply if the questions of fault and reasonable foreseeability were at issue. See 38 C.F.R. §§ 3.361(d)(2), 17.32. However, as will be discussed below, in light of the evidence of record, those questions are not for consideration in this case. Consequently, remand for any additional attempt to obtain records regarding informed consent for VA treatment is not required. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Finally, VA treatment records associated with the claims file reflect that the Veteran underwent corrective osteotomy of the left wrist with iliac crest bone graft from the left hip and open reduction and internal fixation in August 2004. The complete report of this surgery has not been associated with the claims file; however, the brief surgery report is of record. There is no indication that the complete operative report would include a medical opinion regarding whether the Veteran has additional left wrist disability as a result of VA treatment, the matter on which this case turns. As such, a remand to obtain the complete operative report would impose unnecessary additional burdens on adjudication resources, with no benefit flowing to the Veteran, and is, thus, unnecessary. See Soyini, 1 Vet. App. at 546. Furthermore, the Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Law and Regulations Effective October 1, 1997, Congress amended 38 U.S.C.A. § 1151. See Section 422(a) of Pub. L. No. 104-204. Under the applicable criteria in effect for claims filed on or after October 1, 1997, compensation under 38 U.S.C.A. § 1151 is awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished him under any law administered by VA, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. See 38 U.S.C.A. § 1151(a) (West 2002 & Supp. 2010). During the pendency of this claim, the regulation implementing the provisions of 38 U.S.C.A. § 1151 changed. Such claims previously were adjudicated under 38 C.F.R. § 3.358. However, VA subsequently promulgated 38 C.F.R. § 3.361 to implement the provisions of the revised statute; this regulation, also applicable to claims for compensation benefits, pursuant to 38 U.S.C.A. § 1151, filed on or after October 1, 1997, is effective as of September 2, 2004. See 69 Fed. Reg. 46,426 (Aug. 3, 2004). In June 2007, the Board remanded the claim so that the RO could readjudicate the issue on appeal in light of 38 C.F.R. § 3.361. In the November 2007 SSOC, the AMC applied the provisions of 38 C.F.R. § 3.361. Generally, where there is no indication that the revised criteria are intended to have retroactive effect, VA has a duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new provisions, and to consider the revised criteria for the period beginning on the effective date of the new provisions. See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). See also VAOPGCPREC 3- 2000 (2000) and 7-2003 (2003). Here, however, the added provisions of 38 C.F.R. § 3.361 are virtually identical to those of 38 C.F.R. § 3.358, in many respects, and merely implement the provisions of 38 U.S.C.A. § 1151 pertaining to claims filed on or after October 1, 1997. As such, the Board finds that there is no due process bar to the Board also applying the provisions of 38 C.F.R. § 3.361 in evaluating the claim. To determine whether a veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to his condition after such care, treatment, or examination has stopped. VA considers each involved body part separately. See 38 C.F.R. § 3.361(b) (2010). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that he received care, treatment, or examination and that he has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1) (2010). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2) (2010). Additional disability caused by a veteran's failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. See 38 C.F.R. § 3.361(c)(3) (2010). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 38 C.F.R. § 3.361(d) (2010). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused his additional disability (as explained in 38 C.F.R. § 3.361(c)); and VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without a veteran's or, in appropriate cases, his representative's informed consent. See 38 C.F.R. § 3.361(d)(1) (2010). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2) (2010). Factual Background and Analysis The Veteran fell and broke his left wrist in late September 2003. His February 2004 claim for § 1151 benefits asserts that, the day after he received initial emergency medical treatment at UPMC-Lee Regional Hospital, he called VA for an appointment for treatment, but he was not seen until four days later, and all VA providers did was put on a cast and let him go home. As a result, he asserted, he developed a protruding bone, could not move his wrist, and he had nerve damage. In his November 2004 substantive appeal, he argued that he had not been referred to a bone specialist when requested; during the fourth week of treatment his cast was slipping off and a new one was not put on, resulting in an inability of his bone to heal; and he was able to come in to be seen the day following his appointment, but VA could not accommodate him for three more days. In March 2009, he argued that VA had refused to change his left wrist cast, despite the fact that it was falling apart, leading to problems with his left wrist. Evidence of record reflects that the Veteran presented to the Emergency Department of UPMC-Lee Regional Hospital on September 27, 2003 (a Saturday), after falling and injuring his left wrist three or four hours earlier. On examination, the left wrist was swollen, but not grossly deformed. Skin was intact and radial pulse was present. X-ray study of the left wrist revealed a comminuted fracture of the distal left radius intraarticular to the radiocarpal joint, with impaction and dorsal angulation of the resultant fragments. The assessment was fracture, left radius. An OCL splint was applied. Despite the assertions made regarding not receiving earlier VA treatment for his left wrist, VA records reflect that the Veteran called the Altoona VAMC on September 29, 2003 to inform them that he broke his wrist two days earlier. He reported that he had a wrist splint. A nurse at the Altoona VAMC offered him an appointment for that day, but he stated that he could not come in until the next day due to difficulties with his automobile. He did report to the VAMC the following day, September 30, 2003, and received treatment for his left wrist. On September 30, 2003, the Veteran reported that he had slipped on a step at his house and fell on his left arm. He denied loss of consciousness or any other injuries, although he complained of pain at the fracture site. The left arm was in a partial splint, ace bandage, and sling. There was good capillary refill and sensation in the fingers. X-ray study revealed a left distal radius fracture. The assessment was fracture of the left distal radius. The Veteran was referred to the surgical clinic, where he was seen the same day. In the surgical clinic he reported that he had fallen four days ago and was advised to obtain an orthopedic appointment for a fracture of the left wrist. The Physician Assistant, Certified (PA-C) explained to the Veteran that there was no orthopedist at the Altoona VAMC, but that treatment consisted of casting. The Veteran agreed to placement of a cast. The Veteran returned to the surgical clinic in early November 2003. The physician noted that he was status post fracture of the radius with four weeks of cast immobilization. Despite the Veteran's November 2004 assertion that his cast was slipping off during the fourth week of treatment, and his March 2009 assertion that he had asked to have his cast changed weeks prior to his treatment in November, the actual record of treatment dated in November 2003 reflects that the cast was in place. The physician reviewed X-ray studies, which revealed a slowly healing fracture. While the assessment was status post fracture distal radius, healing right wrist, the reference to the right wrist is clearly a typographical error, as, in the same note, the physician noted that the Veteran should undergo X-ray study of the left wrist for follow-up in late November. In late November 2003, the Veteran returned for follow-up. He reported that he was doing well and requested cast removal. On examination, the cast was in place and there was good distal circulation. The cast was removed. The PA-C noted that the cast had been cut away distally from initial application by the Veteran. X-ray studies revealed good alignment and continued healing. A wrist splint was applied. In December 2003, the Veteran underwent an initial evaluation for occupational therapy at the Altoona VAMC for his left wrist. The occupational therapist noted that the Veteran was right-handed and had a history of a fusion of the right wrist. The Veteran described pain level 0 out of 10 at rest, increasing to 8 to 9 out of 10 with use. He added that his pain was usually controlled secondary to medication for chronic back pain. He denied numbness or tingling of the left hand. He noted that he had a history of carpal tunnel syndrome of the left hand, but that symptoms had subsided since his injury. The Veteran reported that he was independent in self-care and completed most tasks with the use of his right upper extremity, although he tended to use his left upper extremity for task completion prior to his fall. The assessment was significant limitations in left forearm, wrist, and hand movements secondary to a recent distal radius fracture and immobilization. In late December 2003, the Veteran cancelled his follow-up appointment with occupational therapy, stating that he continued to have pain and weakness of the left wrist. He added that he felt his wrist was not healing properly. He was instructed to request further orthopedic assessment. A January 2004 VA orthopedic clinic note reflects that the Veteran had a severely displaced Colles fracture which was healed with marked radial shortening. X-ray study of the left wrist revealed some callus formation at the fracture site. The fracture fragments remained in unchanged position and alignment. He was referred to the Pittsburgh VAMC for an orthopedic consultation. He presented to the Pittsburgh VAMC in June 2004. On examination, the left wrist had very weak grasp and very limited range of motion. There was left wrist deformity with radial shortening and the ulna was prominent. X-ray studies of both wrists were reviewed. These studies revealed the old fracture of the left distal radius with satisfactory healing process and slight deformity, as well as fusion of the right wrist and partial resection of the right distal ulna. The assessment was status post left distal radius fracture with malunion. In August 2004, the Veteran underwent corrective osteotomy of the left wrist with iliac crest bone graft from the left hip and open reduction and internal fixation at the Pittsburgh VAMC. Later that month, he was seen for follow-up. He was described as two weeks status post corrective osteotomy of a severely deformed left distal radius. The physician noted that the Veteran had a very significant dorsal malalignment of roughly 35 degrees and was short about 1.5 cm., and sustained correction to neutral. There was some loss of radial inclination, but pain had been reasonably well-controlled. Examination revealed a nicely healed incision, and the left wrist had significantly improved alignment. Although the left wrist was still slightly radially deviated, this was described as "nowhere near where he was before." X-ray studies revealed good alignment. The assessment was that the Veteran was doing well. During VA treatment in November 2004, the Veteran reported that he had improvement in his left wrist, although he still occasionally had pain in the arm. On examination, there was no bony point tenderness and the Veteran was able to make a full composite fist. X-ray studies revealed delayed healing; however, there was improvement since his last examination, with a dorsal cortex intact. Inclination and volar tilt were unchanged and radial length was mildly short. The assessment was: "Doing well status post corrective osteotomy for right distal radius malunion." This reference to the right wrist is clearly a typographical error as, earlier in the same report, the physician referred to status post corrective osteotomy with bone graft of the left distal radius. As noted in the introduction, the report of the VA examination of another Veteran, conducted in June 2010, was associated with the claims file. While this examination report includes the identifying information of the Veteran in this case, the body of the report pertains to a different Veteran. Accordingly, in July 2010, the RO sought an additional opinion, as the June 2010 VA examination associated with the claims file was inadequate. The Veteran in this case was, however, was also afforded a VA examination in June 2010. In a September 2010 addendum, the VA examiner who performed the June 2010 VA examination clarified that the Veteran's June 2010 VA examination report was in the Computerized Patient Record System (CPRS) notes, but not in the claims file. As part of the September 2010 addendum, she included the complete report of the June 2010 VA examination. The June 2010 VA examination was conducted at the Altoona VAMC. In discussing his medical history, the Veteran reported that he did not come to VA or call VA right after his injury due to the fact that it occurred on a weekend. He added that he had not cut his cast off, but had trimmed it back where strings were coming out onto his hand. He stated that, when his swelling had decreased, he wanted his cast changed as it did not fit him correctly, but VA did not change his cast, as requested. In describing his current symptoms, the Veteran reported worsening pain in his left hand with deformity. He added that his left hand was very weak and he did not have full use of it. He noted that he was unable to grasp items for long periods of time without experiencing pain. The VA examiner provided a detailed summary of the pertinent treatment records regarding treatment for the Veteran's left wrist from September 2003 to August 2004. On examination, there was a gross deformity of the left wrist and forearm. There was a fork-like appearance in structure, decreased sensation in the left forearm and fingers, and limited motion of the left wrist and arm. A 7cm. by 1/4 cm. by 1/4 cm. scar was noted on the left arm. Range of motion testing of the left wrist revealed flexion to 60 degrees, extension to 35 degrees, ulnar deviation to 25 degrees, and radial deviation to 35 degrees. There was mild evidence of pain in the affected wrist at rest, as well as tenderness and guarding of movement. A June 2010 X-ray study of the left wrist revealed an internal fixation device with chronic deformity. The diagnosis was left wrist strain with residuals, status post malunion of the left Colles fracture in September 2003, and status post osteotomy of the left wrist in August 2004. In describing the medical state of the Veteran's left wrist immediately following his emergency treatment at UPMC-Lee Regional Hospital prior to his initial treatment by VA, the examiner indicated that the Veteran had a comminuted fracture of the left wrist on September 27, 2003 immediately following his emergency treatment at UPMC-Lee Regional Hospital. The examiner opined that reviewing the medical record did not show the Veteran to have increased disability of his left wrist compared to his medical state immediately prior to inception of VA treatment. The examiner added that the pre-existing condition of the left wrist fracture was the same fracture treated at the VAMC, and she could not state if there was a pre-existing condition prior to the Veteran's August 2004 surgery. The examiner also commented that there was no evidence that the Veteran did not follow medical instructions in regard to his left wrist. She noted that the Veteran did not remove his entire cast, but, rather, only cut a portion where strings were hanging out. In the August 2008 remand, the Board had instructed that, if VA medical records showed the Veteran to have increased disability of his left wrist as compared to its medical state immediately prior to the inception of VA treatment, the examiner should provide opinions regarding (1) whether such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment; (2) whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider; and (3) whether the proximate cause of any additional disability an event not reasonably foreseeable. In response to each of these requests, the examiner stated that, as the Veteran received part of his care at the Pittsburgh VAMC and part of his care at the Altoona VAMC, it would be a conflict of interest for her to render a medical opinion. She added that, after review with her immediate supervisor, it was recommended that the case be referred to the Philadelphia VAMC for an opinion. In November 2010, a physician at the Wilkes-Barre VAMC reviewed the claims file to provide the requested opinion. He addressed the following questions posed in the August 2008 remand: (1) What was the medical state of condition of the Veteran's left wrist immediately following his emergency treatment at UPMC-Lee Regional Hospital and prior to his initial treatment by VA; (2) Do VA medical records show the Veteran to have increased disability of his left wrist as compared to its medical state immediately prior to the inception of VA's treatment of it; (3) If so, what is that additional disability, and was any additional disability either directly or through aggravation of his preexisting condition, as a result of his VA treatment, either prior to the August 2004 surgery or as a result of the surgery; (4) If such additional disability was sustained, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment; (5) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider; (6) Was the proximate cause of any additional disability an event not reasonably foreseeable; and (7) Did the Veteran comply with all medical instructions during his treatment? In addressing the first question, regarding the medical state of the Veteran's left wrist prior to VA treatment, the physician stated that the Veteran had X-rays on September 27, 2003 which demonstrated a comminuted intraarticular angulated displaced fracture of the left wrist and a splint was applied. When he was seen at the VAMC, the Veteran was in a splint with pain and swelling, such as would be expected several days following emergency treatment of a severe fracture of the wrist. In response to the second question, regarding increased disability, the physician stated that, at the time VA initiated treatment, the Veteran had swelling, pain, and limitation of motion as would be expected with an acute fracture. The physician commented that the third question was complex, and indicated that, prior to VA treatment, the Veteran had a 10 percent disability for carpal tunnel syndrome [for purposes of nonservice-connected pension], but that, at least one of his treatment records subsequent to the September 2003 injury and treatment indicated that his carpal tunnel syndrome symptoms were less. The physician stated that, "[t]o answer the question fairly specifically, there is not additional disability compared to his state following the acute fracture." In addressing the fourth question, regarding carelessness, negligence, lack of proper skill, or similar instance of fault on the part of VA, the physician stated that additional disability was not identified compared to the Veteran's state immediately before the initiation of VA treatment. He then went on to discuss the fifth question, regarding degree of care exercised by VA. He opined that timely care was provided by VA after being contacted by the Veteran, even given the limits of the delay because of his automobile problems. The physician commented that the Veteran was initially seen by a physician's assistant under the direction of a surgeon and a cast was applied. He noted that the Veteran was informed that an orthopedic surgeon was not available. The physician went on to note that the standard of care at the Wilkes-Barre VAMC (and most VA hospitals where an orthopedic surgeon is available) would have been for the Veteran to have been seen by an orthopedic surgeon within seven to ten days following the injury. He added that, under most reasonable circumstances for a person his age, placement in a cast would not have been accepted by a review of two orthopedic surgeons at his facility; rather, the preferred treatment may have been application of an external fixator, pins and plaster, or other treatment in an attempt to reduce the fracture. However, he noted that, without an orthopedic surgeon available, he was not certain what the standard of care should and would be. The physician went on to add that, when he was examined in December 2003 and January 2004, the Veteran had a reasonable degree of motion of his fingers and hand, and at least once or twice, had pain level recorded at zero. He also noted that the follow-up care received by the Veteran at the Pittsburgh VAMC was consistent with the care provided by a subspecialist and surgeon, specifically, operative correction of the deformity with restoration of most of the length and restoration of the dorsal angulation to zero degrees. However, he noted that, despite this surgery, some changes consistent with degenerative arthritis of the radiocarpal joint had progressed on follow-up X-rays. In response to the sixth question, regarding foreseeability, the physician stated that the disability with respect to the Veteran's right distal radius and wrist was foreseeable because of the severe nature of the fracture. [The reference to the right wrist in this response is clearly a typographical error, as the fracture was to the left wrist.] In addressing the final question, regarding the Veteran's compliance with medical instructions, the physician noted that the Veteran removed part of the original splint placed in the emergency room, which may have significantly changed his status, but that he did not have the original X-ray studies from that facility to compare. He added that the Veteran did not continue with occupational therapy, as he was expecting medical care at the Pittsburgh VAMC, and that, perhaps continuing such therapy may have resulted in increased range of motion. Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that the claim for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, must be denied. In this case, there is simply no competent medical evidence indicating that the Veteran has additional left wrist disability that was due to VA treatment. Rather, the VA examiner who evaluated the Veteran in June 2010 opined that the Veteran did not have increased disability of his left wrist compared to his medical state immediately prior to inception of VA treatment. Similarly, the physician who provided the November 2010 opinion indicated that additional disability was not identified compared to the Veteran's state immediately before the initiation of VA treatment. The Board finds that the June 2010 and November 2010 opinions are probative of the question of whether the Veteran has an additional left wrist disability that is proximately due to VA medical treatment. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). These opinions were based on review of the claims file and, in the case of the June 2010 opinion, examination of the Veteran. Significantly, neither the Veteran nor his representative has presented, identified, or alluded to the existence of any medical evidence or opinion that directly contradicts the June 2010 and November 2010 conclusions. Consequently, the Board must conclude that the competent medical evidence documents no additional left wrist disability as a result of VA treatment. See 38 C.F.R. § 3.361(b). As such, the Board need not address the remaining section 1151 criteria-specifically, whether there is evidence of any carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA, or the occurrence of any event that was not reasonably foreseeable. [Parenthetically, the Board notes that the physician who rendered the November 2010 opinion specifically found that the disability with respect to the distal radius and wrist was foreseeable because of the severe nature of the fracture. Moreover, while this physician provided a detailed discussion regarding the degree of care exercised by VA, he noted that, without an orthopedic surgeon available, he was not certain what the standard of care should and would be. This physician acknowledged, and the record reflects, that the Veteran was advised that an orthopedic surgeon was not available at the Altoona VAMC. In any event, as indicated above, the evidence does not reflect an additional left wrist disability due to VA treatment. ] In addition to the medical evidence, in adjudicating this claim, the Board has considered the Veteran's and his representative's assertions; however, none of this evidence provides a basis for allowance of the claim. Laypersons, such as the Veteran and his representative, are generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit in Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009), explicitly reiterated that it rejected the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis." Id. at 1316 . Here, however, while the Veteran may report on the symptoms in regard to his left wrist and allege increased disability of the left wrist due to VA treatment, the preponderance of the evidence of record does not contain competent medical evidence of an additional left wrist disability as a result of VA treatment. Under these circumstances, the Board must conclude that the criteria for compensation benefits, pursuant to the provisions of 38 U.S.C.A. § 1151, for residuals of a left wrist fracture are not met, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for residuals of a fractured left wrist is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs