Citation Nr: 1320760 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 11-26 326A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to disability compensation under 38 U.S.C.A. § 1151 for a right wrist disability, due to treatment at the Department of Veterans Affairs (VA) Medical Center (VAMC), on May 28, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran had active military service from October 1976 to September 1977. This matter comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to compensation under 38 U.S.C.A. § 1151 for degenerative joint disease of the right wrist. In February 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing is of record. In March 2013, the claims file was sent to an independent medical expert for an etiology opinion. FINDING OF FACT The competent evidence of record weighs against a finding that the Veteran has a right wrist disability as the result of fault on the part of VA; or not reasonably foreseeable residuals from surgery for a carpal tunnel release. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for a right wrist disability disability have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326 (2012). Letters dated in September 2010 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating, with respect to the issue on appeal. Dingess v. Nicholson, 19 Vet. App. 473 (2006). At his February 2013 hearing the Veteran specifically waived any error in the content and timing of these notices. The Veteran's service treatment records, VA medical treatment records, and an independent medical examiner's opinion have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The independent medical opinion is adequate because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and thus allows the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Factual Background and Analysis The Veteran seeks entitlement to disability compensation under 38 U.S.C.A. § 1151 due to surgery at the VAMC for his right wrist in May 2010. When a veteran incurs additional disability as the result of hospital care, medical or surgical treatment, or examination furnished by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. 38 U.S.C.A. § 1151. To establish entitlement to Section 1151 benefits, these factors must be shown: (1) disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. § 3.361, provides that 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death; and VA failed to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361(d). To determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based, is compared to his condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. 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)(1). 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. 38 C.F.R. § 3.361(c)(2). The Veteran asserts that the his VA treatment resulted in an additional wrist disability. In various statements, in statements made on his behalf by his representative, and during his February 2013 video conference hearing, the Veteran argued that during treatment for his carpal tunnel syndrome, he complained that something else was wrong with his wrist. He explained that his complaints were ignored and contends that VA's failure to follow up on these complaints demonstrates wrongdoing on the part of VA. In a May 28, 2010 operation report, it is shown that the Veteran underwent an elective carpel tunnel release, there were no complications and the Veteran tolerated the procedure well. An informed consent record demonstrates that informed consent was obtained at 8:21am on May 28, 2010. Following the procedure, in June 2010, the Veteran's wrist was found to be swollen, he was found to have post-operative cellulitis, was admitted into neurosurgery and treated with intravenous antibiotics. See June 16, 2010 Emergency Room Treatment Note. The Veteran was discharged on June 22, 2010 following successful treatment for his infection. In March 2013, the Board requested an independent medical opinion so that it could be determined whether any wrongdoing by VA caused or aggravated a right wrist disorder, as the Veteran asserted. On March 27, 2013, the independent medical examiner provided a report, noting that he had reviewed the Veteran's medical record and provided a detailed report of the Veteran's medical history. Following a report of the Veteran's medical history, the independent medical examiner stated that, based on the Veteran's radiographic findings in September and October of 2010, the Veteran likely had chronic longstanding wrist arthritis unrelated to a carpal tunnel release performed in May of that year. The examiner explained that the Veteran likely had two simultaneous problems at the same time: carpal tunnel syndrome and degenerative changes of the radiocarpal joint. He stated that once the carpal tunnel syndrome had been corrected it became apparent, both to the Veteran and his clinicians, that there was another underlying problem. The examiner stated that, in a critique of the case presented by VA, the case that the Veteran had longstanding wrist arthritis was poorly documented and that a thorough examination of the wrist or an x-ray would have readily demonstrated that there were two problems going on, including wrist arthritis and carpal tunnel syndrome, and that this should have been discussed with the patient. The examiner continued, however, that the October 2010 radiology report describes a chronic problem that would not have been caused by carpal tunnel release. Specifically, in response to questions proffered by the Board, the examiner explained that the Veteran had a chronic disability at the time of the right wrist carpal tunnel release. He stated that the natural history of that disability was progressive pain and disability and that the carpel tunnel release was not the cause of the chronic wrist arthritis. The Board additionally asked whether it was at least as likely as not that any increasing severity of a right wrist disability was the result of carelessness, negligence, lack of proper skill, error in judgment or a similar instance of fault on the part of VA in furnishing care in May 2010, specifically as a result of the Veteran not being x-rayed prior to surgery. In response, the examiner reiterated that the Veteran did not experience additional disability and that there was no additional disability caused by VA medical treatment. The Veteran is competent to testify as to observable facts. He may describe his observed pain and details regarding his treatment to include that he was not x-rayed prior to his operation, and the Board accepts his statement as credible. The Veteran is not, however, competent to opine as to whether VA carelessness caused an additional right wrist disability during his May 2010 surgery. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the issue of whether the Veteran's VA surgeon acted appropriately, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). No factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to speak as to whether the VA treatment he received was medically appropriate. For this reason, the Veteran's lay opinion is of no probative value as to the issue of whether the care provided was appropriate. 38 C.F.R. § 3.303(d). The only medical nexus opinion, that of the independent medical examiner, weighs against the Veteran's claim. The VA examiner concluded that, while the Veteran did have underlying arthritis, his carpal tunnel surgery did not increase or cause that disability. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in an additional disability. § 38 C.F.R. § 3.361(c)(2). Here, while the competent medical evidence does support a finding that a VA physician should have noted the Veteran's right wrist arthritis, that arthritis was found to pre-exist the Veteran's May 2010 surgery and is not found to have been aggravated by that surgery. Thus, the Veteran's right wrist arthritis is as it would have been had no carpel tunnel release occurred. The evidence of record demonstrates treatment, and an additional disability, the Veteran's right wrist arthritis, however the competent medical evidence clearly demonstrates that right wrist arthritis was neither caused, nor aggravated by the medical care provided by VA. As the Veteran is not competent to provide an opinion as to whether an additional right wrist disability was caused or aggravated as a result of fault by the VA; and as the only competent medical evidence is against the claim; the preponderance of the evidence is against the Veteran's claim for compensation under 38 U.S.C.A. § 1151. There is no doubt to be resolved; and compensation for a right wrist disability is not warranted. ORDER Entitlement to disability compensation under 38 U.S.C.A. § 1151 for a right wrist disability, due to treatment at the Department of Veterans Affairs (VA) Medical Center (VAMC), on May 28, 2010, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs