Citation Nr: 1311772 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-16 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right wrist disorder due to VA surgical treatment. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from May 31, 2007 to July 1, 2009. 3. Entitlement to TDIU from July 1, 2009 to September 8, 2009. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran & his son ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to May 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Wichita, Kansas Department of Veterans Affairs (VA) Regional Office (RO). A Travel Board hearing was held before the undersigned in August 2010. A transcript of the hearing is of record. As explained below, the Board is remanding the claim for TDIU from May 31, 2007 to July 1, 2009 and dismissing as moot the claim for TDIU from July 1, 2009 to September 8, 2009. Therefore, the Board has recharacterized the TDIU issue to reflect these distinct time periods. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU from May 31, 2007 to July 1, 2009 is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. As a 100 percent schedular rating is assigned for service-connected coronary artery disease (CAD) effective May 17, 2005 and the Veteran has been granted special monthly compensation effective July 1, 2009, the claim for TDIU from July 1, 2009 to September 8, 2009 is moot. 2. Additional disability from a right wrist surgery performed at VA in April 2007 was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The appeal for entitlement to TDIU from July 1, 2009 to September 8, 2009 is dismissed. 38 C.F.R. § 4.16(a) (2012). 2. The criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 for additional disability from a right wrist surgery performed at a VA facility in April 2007 are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 1. TDIU Regarding the claim for TDIU, as will be explained in detail below, the RO has granted a 100 percent schedular disability rating for service-connected coronary artery disease from May 17, 2005, and special monthly compensation from July 1, 2009. These awards moot the claim for TDIU from July 1, 2009 to September 8, 2009. As such, review of VA's duties to notify and assist is not necessary on this portion of the TDIU claim. The Board notes that its March 2011 remand requested the RO refer the TDIU claim for extraschedular consideration. The record reflects the RO did not comply with this instruction. Although a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders, here, there is no prejudice to the Veteran that the requested development was not completed for the TDIU claim from July 1, 2009 to September 8, 2009 as it has been rendered moot. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Compensation under § 1151 The Veteran was advised of VA's duties to notify and assist in the development of the claim seeking entitlement to compensation under 38 U.S.C.A. § 1151 prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A February 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. Although the Veteran was not advised of the criteria regarding disability rating and establishing the effective date of an award in conjunction with this claim, he is not prejudiced by lack of such notice (see Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)), as disability rating and effective date criteria have no significance unless the claim is allowed, and this decision does not do so. All relevant evidence necessary for an equitable resolution of this issue has also been identified and obtained, to the extent possible. The evidence of record includes the reports of April 2008 and June 2012 VA examinations, VA treatment records, letters from the surgeon who completed the April 2007 surgery, lay statements from the Veteran and his son, and the transcript of the August 2010 hearing before the undersigned. Regarding whether there was substantial compliance with the Board's August 2011 Remand directives, the AOJ secured the full consent documents from the April 2007 surgery and contacted the Regional Counsel for Kansas City, Missouri to request documentation from the Veteran's Federal Tort Claims Act claim. The Regional Counsel's response explaining that they were unable to provide these records due to their privileged nature has been associated with the claims file. The RO also arranged for a VA examination in June 2012. This examination was adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The VA examiners completed all necessary testing, examined the Veteran, reviewed his claims file, and provided the opinions requested by the March 2011 Remand. The appeal was readjudicated by an October 2012 supplemental statement of the case (SSOC). Therefore, the Board concludes that there was substantial compliance with the entirety of the Board's remand instructions related to the § 1151 claim. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran also was provided an opportunity to set forth his contentions during the August 2010 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the August 2010 hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his § 1151 claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Legal Criteria, Factual Background, and Analysis 1. TDIU In VAOPGCPREC 6-99 (June 7, 1999), the General Counsel's office held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability or disabilities separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). Since the opinion in Bradley is contrary to that of the precedent opinion, the General Counsel subsequently took action in November 2009 to withdraw the opinion. However, there remain situations in which the granting of a 100 percent schedular rating can moot a TDIU claim. In this case, in a September 2011 rating decision the AOJ granted the Veteran a 100 percent schedular rating for CAD, effective May 17, 2005 and special monthly compensation, effective July 1, 2009, based on his 100 percent schedular rating for CAD and his additional service-connected disabilities of diabetes mellitus and peripheral neuropathy of the bilateral upper and lower extremities that are independently ratable at 60 percent. 38 U.S.C.A. § 1114(s). Since the Veteran is already receiving special monthly compensation from July 1, 2009 based on his 100 percent schedular rating for CAD and additional disabilities that are independently rated at 60 percent or more, the decisions in Bradley and Buie do not apply and the claim for TDIU from July 1, 2009 to September 8, 2009 is moot. Therefore, it is dismissed. 2. Compensation under § 1151 The Veteran alleges that he has additional disability, including decreased range of motion, popping and pain with motion, and intermittent swelling, resulting from an open reduction internal fixation (ORIF) surgery performed on his right wrist at a VA facility in April 2007. He also alleged in his August 2007 claim that the surgeon cut his nerves and tendons rendering his right hand useless. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When a Veteran suffers additional disability as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. For claims filed on or after October 1, 1997, as here, the Veteran must show that the VA treatment in question resulted in additional disability, was not the result of the Veteran's willful misconduct, and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. In Viegas v. Shinseki, No. 2012-7075, 2013 WL 363004, at *2 (Fed. Cir. Jan. 31, 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained the requirements as follows: 1) the claimant must incur an additional disability that was not the result of his or her own willful misconduct; 2) the disability must have been caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility; and 3) the proximate cause of the additional disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event not reasonably foreseeable. To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately prior to the beginning of medical or surgical treatment to the Veteran's condition after such care has ceased. 38 C.F.R. § 3.361(b). To establish a causal connection, the evidence must show that the hospital care, medical or surgical treatment, resulted in the Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c). The Federal Circuit has indicated that a Veteran's injury does not have to be "directly" caused by the "actual" provision of medical care by VA personnel; it can also be caused when an injury occurs in a VA facility because of VA's negligence. Viegas, 2013 WL 363004, at *3. To establish that fault on the part of VA proximately caused the additional disability, it must be shown that VA's failure to exercise the degree of care expected of a reasonable health care provider, or to furnish the hospital care, medical treatment, or surgery, without the Veteran's informed consent or an event not reasonably foreseeable proximately caused the additional disability. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32. Minor deviations from these requirements that are immaterial under the circumstances of the case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have seen. 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. 38 C.F.R. § 3.361(d)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). With respect to lay evidence, the record contains lay evidence from the Veteran and his son via written statements and testimony provided at the August 2010 hearing before the undersigned. The Veteran and his son are competent to provide lay evidence regarding matters within their personal knowledge and experience. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his or her personal knowledge and experience); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that a claimant is competent to report observable symptoms that require only personal knowledge, not medical expertise, as they come to the claimant through his senses). However, the Board must weigh the lay evidence and determine whether or not it is credible. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (finding that the Board is within its province to weigh lay evidence and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection). In determining whether lay statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). The evidence reflects the Veteran has additional disability since the April 2007 right wrist surgery, as he now has degenerative arthritis of the wrist, decreased range of motion, and limited function of the right wrist and hand. There is no indication in the record that the additional disability was caused by the Veteran's willful misconduct. Therefore, the criterion of having a qualifying additional disability is met. The key inquiries in this case are whether the additional disability was caused by hospital care, medical or surgical treatment, or examination furnished by VA and that the "proximate cause" of the Veteran's additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA or that it was due to an event not reasonably foreseeable. In early April 2007 the Veteran was treated at the VA in Topeka for a complicated right wrist fracture. X-ray results revealed multiple fractures, including a comminuted fracture of the distal radius with fracture continuing to the articular surface, antero lateral displacement of distal fragment, fracture of the ulnar styloid, and a buckling fracture at the midaspect of the navicular bone. A closed reduction of the right wrist was attempted to align the fracture as much as possible with appropriate splinting and immobilization. The physician at Topeka felt that an ORIF was most likely indicated and referred the Veteran to the Leavenworth VA for further treatment by an orthopedic surgeon. The Veteran was scheduled for ORIF surgery with Dr. D.D. later in April 2007. An April 27, 2007 pre-operative VA note by a Physician Assistant indicates that the Veteran was educated in regard to the scheduled operation, possible alternative treatment methods, risks involved, and possible complications. He verbalized understanding of all preoperative teaching. On April 28, 2007, the day of the right wrist surgery, a pre-operative note from the surgeon, Dr. D.D., indicates that the Veteran was educated in regard to the scheduled operation, possible alternative treatment methods, risks involved, and possible complications and that he verbalized understanding of all preoperative teaching. The operation report also states that Dr. D.D. and the Veteran talked about the risks, benefits, and alternatives to ORIF. They also talked about posttraumatic arthrosis and an intraarticular fracture and other issues related to the hardware and fracture fixation. It was noted that the Veteran gave his informed consent. An informed consent form signed by Dr. D.D. at 8:36 a.m and by the Veteran at 8:37 a.m. on April 28, 2007 reflects that the Veteran was educated about the nature of the proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks; complications or side effects; reasonable and available alternatives; and anticipated results if nothing was done. The informed consent specifically indicates that the Veteran was told that the surgery had the following known risks: (a) infection that may require antibiotics and/or further surgery; (b) nerve or blood vessel injury with possible excessive bleeding; (c) temporary or permanent numbness/weakness of the extremity; (d) unsightly or painful scar; (e) unexpected change in procedure at time of surgery; (f) less than complete recovery of normal functions or pain relief; and (g) possible removal of hardware in the future. Surgical records reflect that the Veteran was placed under anesthesia at 8:45 a.m. The operation report indicates that the reduction was "quite satisfactory and the implants were in good position without evidence of any problems." A separate treatment note from Dr. D.D. indicates that there were no complications during the surgery. A post-operative note indicates the Veteran and his son understood the post-operative instructions and that the Veteran would be sent a letter regarding a follow-up appointment with the orthopedic clinic. A May 2007 note indicates the Veteran was treated at Topeka for the removal of stitches. He did not have any complaints other than some stiffness and occasional numbness. He indicated that he did not want to go back to the Leavenworth VA for treatment because of gas prices. Physical examination revealed some soft tissue edema, movement of all digits, and sensory function that was grossly intact to light touch. He was able to flex and extend his wrist 15 to 20 degrees without difficulty. A May 2007 occupational therapy note indicates that edema and joint stiffness were the primary barriers to normal use of the right hand and would need to be improved prior to initiation of strengthening exercises. The treatment plan was to have the Veteran seen twice a week for eight weeks for fluidotherapy, active and passive range of motion/stretching and joint manipulation to increase range of motion. VA treatment records show the Veteran was seen for such treatment twice a week for about three weeks, until the middle of June. He then was not seen again until the middle of July, at which time the occupational therapist determined that the Veteran was having too much pain to continue with occupational therapy and that it may be beneficial for him to be seen by the pain clinic. An August 2007 orthopedic consultation note states that progress had been slow in improving the stiffness and swelling in his fingers and hand. X-rays revealed the plate and screws on the distal radius, an ulnar styloid fracture, and that the implant was very near the wrist joint. The physician did not see any need for any additional surgical treatment and hoped that the Veteran would be able to gradually improve his range of motion with home exercises. In an April 2008 opinion, the Chief of Staff for VA Eastern Kansas HCS reviewed the Veteran's § 1151 claim and issued a statement finding the Veteran received appropriate care and treatment surrounding his surgery on his right hand on April 28, 2007 and that the claim that nerves and tendons were cut during surgery was not substantiated. On physical examination during a March 2009 orthopedic consult, it was noted that the Veteran had limited motion of the right wrist and lacked about twenty-five to thirty percent of both the extension and flexion ranges. He had a good grip and had normal circulation and sensation distally in the hand and fingers. There was tenderness over the radial side of the distal forearm and wrist and there was crepitation during his motion indicating tenosynovitis. Limited motion was noted to be secondary to the previous fracture. X-rays revealed a fractured distal radius with internal flexion with plate and screws very near the wrist joint surface. In June 2012, a VA nurse practitioner and a VA orthopedic specialist reviewed the Veteran's file and provided opinions on the source of the Veteran's additional disability. The nurse practitioner opined that the additional disability was not caused by VA treatment and was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. She also concluded that the additional disability was due to an event that was reasonably foreseeable, specifically noting that future sequelae of such a complicated fracture were likely, regardless of how good the care and surgical intervention was. The nurse practitioner explained the clinical course of the Veteran's injury and surgery, noted that VA records show the Veteran was educated and expressed his understanding about the ORIF surgery, possible alternative treatment methods, risks involved, and possible complications. She noted that the surgical course was uneventful and that the Veteran was dismissed to follow-up treatment. The orthopedic specialist also opined that the Veteran's additional disability was not caused by the ORIF surgery or by any fault or negligence on the part of VA staff. Specifically, the specialist opined that the Veteran's fracture was "an extremely difficult" one to fix and after reviewing the postoperative X-rays and the long-term X-ray he concluded the results of the surgery were "technically good." The examiner stated that a fracture of this type obviously presented potential future complications, including osteoarthritis and decreased range of motion. His review of the record did not reveal any departure in the standard of care on the part of the VA institution or the surgeon. He noted that the result could have been improved if the Veteran had followed through regularly with an orthopedic surgeon. Instead, the specialist indicated the Veteran "kind of self-neglected" his recovery by not following up with such a specialist as he had been instructed. In analyzing and weighing the evidence, the Board places little probative value on the April 2008 VA opinion that the Veteran received appropriate care and treatment as the physician did not provide any rationale for his conclusions. The Court has held that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion." See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Miller v. West, 11 Vet. App. 345, 348 (1998). Since the physician did not support his conclusion with an analysis the Board could weigh against any contrary opinion, the opinion does not provide sufficient detail and rationale to allow the Board to make a fully informed decision on the issues present in this case. In contrast, the Board affords the two June 2012 VA opinions great probative weight. These opinions support that the Veteran's additional disabilities were not caused by the surgical care and were not proximately caused by any fault of VA in furnishing care or by an event that was not reasonably foreseeable. The value of a medical practitioner's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Here, the opinions reflect that the opinion providers thoroughly reviewed the claims file and were aware of the pertinent facts and evidence as they both discussed the evidence of record when reaching their conclusions. They both concluded that there was no indication from the evidence that there were any complications or problems with the surgery. The orthopedic specialist in particular noted that X-rays showed "technically good" surgical results and that the Veteran's functional results could have been improved if he had regularly followed up with an orthopedic surgeon. Neither medical practitioner could find any evidence in the record that indicated any departure from the standard of care in the provision of the surgery. These opinions support a conclusion that the additional disabilities were not caused by the ORIF surgery or by any fault of VA in furnishing care. Regarding whether informed consent was provided for the surgical treatment, the Veteran has essentially stated that he was not given the information necessary for him to provide informed consent. Specifically, he testified that he remembered seeing the surgeon prior to the surgery when he had already been given anesthesia and that he could barely read the paper to which he signed his name. Board Hearing Tr. at 15. The Board does not find this testimony to be credible as other evidence of record directly contradicts the Veteran's statements. VA treatment records reflect that the Veteran signed the informed consent form at 8:37 a.m. and that he was put under general anesthesia subsequently at 8:45 a.m. This evidence clearly shows that the Veteran was given the information necessary to provide informed consent and that he signed the informed consent forms prior to being placed under anesthesia. The informed consent form itself clearly explains the risks the Veteran faced from the surgery, including those of not regaining full function, experiencing pain, and having permanent numbness or weakness of the extremity. Furthermore, the VA treatment records reflect that he was informed of the risks of treatment the day before his surgery. Therefore, the Board concludes that the Veteran gave informed consent for the surgical procedure. Additionally, the opinions and the evidence of record support that the Veteran's additional disabilities were reasonably foreseeable results of the fracture and the surgery. Both the nurse practitioner and orthopedic specialist indicated that complications such as the Veteran's were reasonably foreseeable results of the fracture the Veteran sustained, regardless of what kind of surgical intervention had been completed. Moreover, the informed consent signed by the Veteran clearly reflects that he was told of the risks of loss of function, pain, and numbness. Therefore, the Veteran's additional disabilities were reasonably foreseeable consequences of the fracture and the surgical procedure. The Veteran's son, S.S., has testified and submitted written statements indicating that he smelled alcohol on Dr. D.D.'s breath after the surgery and that the physician looked unkempt as he was wearing a sweatshirt with Cheeto crumbs on it. Board Hearing Tr. at 4-5. S.S. indicated that he had worked in the bar business for many years and knew the difference between a hospital sanitary smell and the smell of alcohol on a person's breath. Id. He stated that he did not report his belief that Dr. D.D. was under the influence of alcohol to the hospital staff. Id. at 7. The Board does not find that S.S. is competent to state whether Dr. D.D. was under the influence of alcohol during the surgery. First, the evidence of record does not support that Dr. D.D. was impaired by alcohol when he performed the surgery. The medical records completed by Dr. D.D. both prior to and subsequent to the surgery are complete and coherent and do not indicate that they were completed by someone who was under the influence of alcohol. Although S.S. may have worked in the bar business, he is not competent to testify that the surgeon was under the influence of alcohol when he performed the surgery as he would have no knowledge of the facts and circumstances that occurred prior to when the surgeon arrived at the hospital and he has not indicated that any behavior exhibited by the physician, other than his choice of clothing, made him believe the surgeon had been drinking. Additionally, in a May 2008 letter, sent in conjunction with a complaint received from S.S. by the Kansas Board of Healing Arts regarding the Veteran's surgery, Dr. D.D. reported that he has never consumed alcohol prior to going into the office or when he is on call. Although the Board recognizes that Dr. D.D. had a vested interest in stating that he did not drink prior to the Veteran's surgery, because the other evidence of record supports his statements, the Board finds them to be credible. Thus, the Board places little probative weight on S.S.'s statements regarding whether Dr. D.D. was under the influence of alcohol when he performed the Veteran's surgery. The Veteran has also testified that he was told the plate and screws had been placed too far up in his wrist. Board Hearing Tr. at 3. X-ray results of record reflect that the plate and screws were placed "very near the wrist joint"; however, there is nothing in the record that shows that this is not the location where they should have been placed. To the contrary, the June 2012 orthopedic specialist indicated that the X-rays revealed that the surgical results were "technically good." BVA finds it unlikely the physician would have made this statement if he believed there was a problem with the location of the plate and screws. Therefore, the Board places little probative weight on these statements as the medical evidence is contradictory. The Veteran is not competent to provide an opinion as to the appropriate location of the plate and screws because he does not have the specialized education, training, or experience to opine on this medical question. See 38 C.F.R. § 3.159(a)(1). In summary, the preponderance of the probative evidence is against a finding that the Veteran's additional disabilities were caused by VA hospital care or medical or surgical treatment. In addition, the Veteran was given informed consent prior to the surgery that included pertinent notice of the risks of the surgery. Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care or medical treatment is not established, and the additional disabilities incurred were reasonably foreseeable. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal and the claim is denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The appeal for TDIU from July 1, 2009 to September 8, 2009 is dismissed. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right wrist disorder due to VA surgical treatment is denied. REMAND Although the Board regrets the continued delay, it finds that additional development is warranted to address the merits of the Veteran's claim for TDIU from May 31, 2007 (the date of his TDIU claim) to July 1, 2009. In its March 2011 remand, the Board found that although the Veteran did not meet the schedular criteria for a TDIU for the period under consideration, the evidence reflected that referral for extraschedular evaluation under 38 C.F.R. § 4.16(b) was warranted. Specifically, the Board found that medical and other evidence of record suggested the Veteran's service-connected diabetes and peripheral neuropathy disabilities precluded him from working in all forms of substantially gainful employment. Therefore, the Board requested the AOJ refer the TDIU claim to the Director of Compensation Service, pursuant to 38 C.F.R. § 4.16(b), for consideration of whether TDIU is warranted on an extraschedular basis. On remand, the AOJ did not complete this referral. Instead, in an October 2012 SSOC, the AOJ stated that the appealed TDIU issue was superseded by the September 2011 rating decision's grant of a 100 percent schedular rating for CAD, effective May 17, 2005. However, for the following reasons, the grant of a 100 percent schedular rating does not moot the issue of entitlement to TDIU from May 31, 2007 to July 1, 2009. VA's duty to maximize benefits requires it to assess all of a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation under 38 U.S.C.A. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Special monthly compensation under 38 U.S.C.A. § 1114(s) is available when a Veteran has a service-connected disability rated as total and has additional service-connected disability or disabilities ratable at 60 percent or more. Here, although the Veteran had a 100 percent schedular rating for CAD from May 31, 2007 to July 1, 2009, he did not receive special monthly compensation. During this time period, he was service-connected for PTSD, evaluated as 30 percent disabling, diabetes mellitus, evaluated as 20 percent disabling, and diabetic peripheral neuropathy, in the bilateral upper and lower extremities, with each extremity rated as 10 percent disabling, and pilonidal sinus and scar from implantation of pacemaker, each evaluated as noncompensable. Although the Court did not specifically discuss in Bradley or Buie whether TDIU would qualify for the second criterion under § 1114(s), that a Veteran have additional service-connected disability or disabilities independently rated at 60 percent or more, the Board finds these decisions to be consistent with such an interpretation. Specifically, these decisions explain that there are certain situations where TDIU could be awarded to satisfy the first criterion of § 1114(s) and other service-connected disability or disabilities could be independently rated as 60 percent disabling to satisfy the second criterion. Bradley, 22 Vet. App. at 293; Buie, 24 Vet. App. at 249-51. The cases do not preclude a disability with a 100 percent schedular rating from qualifying for the first criterion under § 1114(s) and TDIU then satisfying the criterion for a separate disability or disabilities independently rated at 60 percent or more if the disability(ies) involved different anatomical segments or bodily systems from the 100 percent service-connected disability. Therefore, if it is determined that the Veteran is entitled to TDIU on an extraschedular basis because of his PTSD and/or diabetes related disabilities, he may also be entitled to receive special monthly compensation. Thus, the matter of entitlement to TDIU from May 31, 2007 to July 1, 2009 is not moot and needs to be addressed further. As a result, the AOJ should have completed the referral to the Director of Compensation Service for consideration of whether entitlement to TDIU from May 31, 2007 to July 1, 2009 on an extraschedular basis is warranted. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). As the AOJ did not substantially comply with the remand instructions, the claim must be remanded again to ensure the AOJ completes such action. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Refer the TDIU claim from May 31, 2007 to July 1, 2009, to the Director of Compensation Service, pursuant to 38 C.F.R. § 4.16(b), for consideration of whether this benefit is warranted on an extraschedular basis. This referral is mandatory, although the decision of whether to actually award an extraschedular rating remains to be decided by the Director of Compensation Service or designate. 2. Then readjudicate the claim in light of any additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). ______________________________________________ BARBARA C. MORTON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs