Citation Nr: 1331642 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 12-17 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for left ulnar mononeuropathy, minor. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from January 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2013 hearing conducted via videoconference. A transcript of the hearing is of record. In May 2013, the Board remanded the Veteran's claim. The Appeals Management Center (AMC) continued the previous denial of the claim in a July 2013 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA appeal has been returned to the Board. The Virtual VA and VBMS paperless claims processing systems were utilized in this case. Instead of paper, highly secured electronic repositories are used to store and review every document involved in the claims process. Because the current appeal was processed as part of the Virtual VA and VBMS systems, any future consideration of this appellant's case should take into consideration the existence of these electronic records. Please note 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). FINDING OF FACT Additional VA treatment for left ulnar neuropathy following VA surgical treatment in April 2008 was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care nor was such due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for additional disability due to treatment for left ulnar neuropathy due to VA treatment in April 2008 under the provisions of 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to compensation based upon the provisions of 38 U.S.C.A. § 1151 for additional disability stemming from VA medical treatment, including surgery in April 2008 for left ulnar neuropathy. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in May 2013, the Board remanded this claim and ordered either the agency of original jurisdiction (AOJ) or AMC to obtain the Veteran's informed consent form with regard to his April 2008 surgery at the VA Medical Center in Erie, Pennsylvania and associate this record with his claims folder. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the Veteran's informed consent form with regard to his April 2008 surgery at the Erie VA Medical Center was obtained and associated with his claims folder. The Veteran's § 1151 claim was readjudicated via the July 2013 SSOC. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date and rating elements of the claim, by a letter mailed in August 2010, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. The evidence of record includes the Veteran's statements as well as private and postservice VA treatment records. As noted above, the Veteran also was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his § 1151 claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the Veteran's left ulnar nerve symptomatology and the criteria required in order to grant the 38 U.S.C.A. § 1151 claim and obtained information concerning his medical treatment. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Additionally, the Veteran was afforded a VA examination in March 2012. The VA examination report reflects that the examiner interviewed and examined the Veteran, reviewed his past medical history, documented his current medical condition, and provided sufficient information for the Board to render an informed determination. The Board therefore concludes that the VA examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. Thus, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Accordingly, the Board will proceed to a decision as to the issue on appeal. Compensation benefits under 38 U.S.C.A. § 1151 The Veteran seeks compensation based upon the provisions of 38 U.S.C.A. § 1151 for additional disability and treatment stemming from a left ulnar nerve release, excision, and transposition surgical procedure performed at the VA Medical Center in Erie, Pennsylvania in April 2008. In particular, he claims that his neurologic disability worsened after the April 2008 surgery. Effective October 1, 1997, the United States Congress amended 38 U.S.C.A. § 1151. See § 422(a) of PL 104-204. The purpose of the amendment was, in effect, to overrule the United States Supreme Court decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence was necessary for recovery under § 1151. In pertinent part, § 1151, as amended, reads as follows: Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department 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 (2012). From the plain language of the statute, it is clear that to establish entitlement to § 1151 benefits, all three of the following 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. For all claims received after October 1, 1997, 38 C.F.R. § 3.361 is the regulation that implements 38 U.S.C.A. § 1151. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part involved or system separately. See 38 C.F.R. § 3.361(b). To establish causation, the 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 or died does not establish causation. See 38 C.F.R. § 3.361(c)(1). 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, the Veteran must show 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; or VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Id. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. 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. Id. After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A review of the record reveals that the Veteran sustained a stroke in January 2007 which affected his left face, arm, and hand. As a result of the stroke, he experienced residual weakness and pain in his left arm and hand. VA treatment records dated January and September 2007 as well as a private treatment record from S.S., M.D. dated February 2007 document the Veteran's complaints of numbness and pain in the left arm and hand. An October 2007 VA treatment record noted assessments of left carpal tunnel and left ulnar radiculopathy. A November 2007 private treatment record from M.S., D.O., indicates that EMG testing revealed left ulnar mononeuropathy at the elbow and wrist as well as carpal tunnel syndrome. The EMG did not show evidence of ongoing nerve compression, but did show chronic changes. Dr. M.S. did not recommend that the Veteran undergo carpal tunnel surgery unless his symptoms became more severe. Likewise, she did not recommend left ulnar nerve surgery as there was no significant ongoing nerve compression at that time. However, a November 2007 VA treatment record documents recommendation of release of ulnar nerve at the elbow and release of carpal tunnel syndrome. The Veteran was counseled as to the risks and benefits of the surgery, and he thereafter consented to the procedure. In April 2008, the Veteran underwent left wrist carpal tunnel release, a left ulnar nerve release, transposition and excision of Dupuytren's at the Erie VAMC. A follow-up record dated April 2008 documents the Veteran's complaints of mild pain with some numbness in the fourth and fifth digits but less than pre-operative. He reported "good relief" with pain medication. Upon examination, sensation and left ulnar nerve motor were intact with mild digit stiffness. The Veteran was diagnosed with status post left wrist carpal tunnel release, left elbow ulnar nerve release/transposition and excision of Dupuytren's contracture left hand, and was advised to modify activities and continue use of pain medications as needed. Subsequent VA treatment records dated May and June 2008 indicated normal progress despite complaints of the Veteran that his left arm and hand pain and numbness had returned. A June 2008 private treatment record from Dr. M.S. notes the Veteran's complaints of increased pain and swelling in his left hand. An examination at that time revealed decreased sensation and prescribed pain medication. A July 2008 EMG showed severe left ulnar mononeuropathy and carpal tunnel syndrome. VA treatment records dated April and November 2009 indicate treatment for left hand pain, neuropathic in nature as well as persistent evidence of both left median and ulnar nerve damage. Private treatment records from Dr. M.S. dated June and September 2010 as well as September and October 2011 note intrinsic wasting of the left hand as well as worsened pain as a consequence of the April 2008 surgery based on review of EMG review pre and post surgery. Dr. M.S. continued the diagnosis of left ulnar mononeuropathy at the elbow with complex regional pain syndrome due to failed ulnar nerve release in a March 2013 record. The Veteran was afforded a VA examination in March 2012 with regard to his § 1151 issue. The VA examiner provided a lengthy summary of the Veteran's medical history of the Veteran, specifically discussing the Veteran's April 2008 surgery as well as his pre and post surgery symptoms with regard to his left ulnar neuropathy and left carpal tunnel syndrome. The examiner also noted the Veteran's current complaints of severe left hand pain, numbness, stiffness, and weakness. The Veteran also reported that he drops things frequently with the left hand and also has hand cramps. There were no alleviating factors except heat to a minimal degree. After examination of the Veteran, to include EMG testing, as well as consideration of his medical history, the examiner diagnosed the Veteran with left ulnar nerve neuropathy and left carpal tunnel syndrome. He thereafter concluded that the current condition of the Veteran's left hand was not caused by the April 2008 surgery or as a result of the negligence, carelessness, lack of proper skill, error in judgment or similar instance on the part of VA. Although the examiner noted that the Veteran's symptoms were not improved or even worsened after the surgery, he indicated this was a known potential complication of the procedure. Specifically, he reported that there is no guarantee of cure and even the possibility of worsening exists. Moreover, he noted that it appeared the Veteran was properly counseled on this possibility before the surgery. The March 2012 VA examination was based upon a review of the history, examination of the Veteran, and a rationale was provided for the opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. The Board notes that a VA examiner opined in a May 2011 opinion that after examination of the Veteran and review of his claims folder, his post surgical complications of the left arm and hand after his April 2008 to include pain and numbness were more severe than would normally be expected from this type of surgery. Therefore, the examiner indicated that the post surgical complications were not reasonably foreseeable. Crucially, however, the examiner noted in her report that the Veteran did not experience pain prior to the April 2008 surgery. However, as discussed above, the medical evidence of record documents complaints of left hand pain on multiple occasions. See, e.g., a private treatment record from Dr. M.S. dated November 2007. As such, although the May 2011 VA examiner noted a review of the Veteran's claims folder, the opinion is based on an inaccurate factual premise as she did not note treatment records documenting left hand pain prior to the April 2008 surgery. Accordingly, the Board finds that the May 2011 VA examination report is inadequate for evaluation purposes and is of no probative value with regard to the Veteran's § 1151 claim. The Board also notes that Dr. M.S. indicated in her March 2013 private treatment report that the Veteran's left ulnar mononeuropathy at the elbow with complex regional pain syndrome is due to the "failed" April 2008 ulnar nerve release. However, Dr. M.S. did not indicate how the Veteran's current symptoms were due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. On the contrary, as discussed above, the March 2012 VA examiner discussed the Veteran's current symptoms as well as his medical history and specifically found that the possibility of a worsening of the Veteran's symptoms was a known complication of the surgery. Therefore, he found that the Veteran's current symptoms were reasonably foreseeable and were not due to fault on the part of VA. Pertinently, Dr. M.S. also did not indicate whether the Veteran's complications were not reasonably foreseeable. Accordingly, the Board finds that Dr. M.S.'s finding that the Veteran's current ulnar nerve symptoms are due to the "failed" April 2008 surgery is of no probative value. In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran testified that he was told by his neurologist prior to the surgery that he did not have carpal tunnel and an operation should not be performed. During a subsequent appointment with the neurologist, she again recommended that he not have surgery. However, a VA physician thereafter recommended surgery and went ahead and operated on the Veteran. After the surgery, the Veteran experienced pain in his whole arm and hand so the physician indicated he could probably follow up with therapy in the hand, which the Veteran did. Unfortunately, it did not help. The Veteran indicated that his physician attributed the irreversible damage to the surgery. The Veteran testified that he did not have pain before the surgery and he was told that what happened to him was not a typical outcome. The Board notes that the Veteran, while competent to report his symptoms both current and past (including pain and numbness in his left arm and hand), has presented no clinical evidence that his worsening of the left ulnar neuropathy and carpal tunnel syndrome was an unforeseeable disability that was caused by VA's treatment related to his left ulnar nerve release, or that an additional disability was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. The Board finds that the Veteran as a lay person is not competent to base such a determination. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person to observe. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contention with regard to his additional disability was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2013) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence that his additional disability was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or was due to an event not reasonably foreseeable. To the extent that the Veteran contends that he underwent the April 2008 surgery without informed consent, the Board observes that his informed consent is documented in the record. Pertinently, "[c]onsent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). See 38 C.F.R. § 3.361(d)(1)(ii). The document indicates that a left ulnar nerve transposition/neuroplasty, a left carpal tunnel release, and left palmar fasciectomy was to be performed. The risks and complications of the procedure included the following: temporary or permanent numbness/weakness of the extremity, less than complete recovery of normal functions or pain relief, continued or worse pain, weakness, infection, bleeding, nerve or blood vessels injury, tingling sensation in the hand, and numbness in the hand. As such, to the extent that the Veteran asserts that he did not provide informed consent, the Board finds his contentions are not credible in light of the evidence contained in contemporaneous treatment records indicating that the Veteran was informed of the risks involved with the surgery and chose to have the procedure. There is no credible evidence to suggest that the treatment the Veteran received was performed without the Veteran's informed consent. The preponderance of the competent, credible and probative evidence is against finding that the Veteran's additional disability following surgery for left ulnar mononeuropathy in April 2008 is 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, medical or surgical treatment, or examination, nor was the additional disability unforeseeable. 38 U.S.C.A. § 1151 (West 2002). While the Board is sympathetic to the Veteran, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for left ulnar mononeuropathy, minor, is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs