Citation Nr: 1632791	
Decision Date: 08/18/16    Archive Date: 08/26/16

DOCKET NO.  14-15 396A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to compensation for residuals of laceration of the left extensor halluces tendon under the provisions of 38 U.S.C.A. § 1151 (West 2014).


REPRESENTATION

Appellant represented by:	Penelope Gronbeck, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Chris Miller, Associate Counsel
INTRODUCTION

The Veteran served on active duty for training from April 1974 to August 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In June 2016, the Veteran testified during a hearing at the Board before the undersigned; a transcript of that hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDING OF FACT

The preponderance of the competent evidence of record supports a finding that the residuals of a laceration of the Veteran's left extensor halluces tendon were caused by VA surgery and the proximate cause of the disability was an event not reasonably foreseeable.

CONCLUSION OF LAW

The criteria for entitlement to compensation for residuals of laceration of the left extensor halluces tendon under the provisions of 38 U.S.C.A. § 1151 are met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2015).

REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected.  A disability is a qualifying additional disability if it was not the result of the veteran's willful misconduct and: 1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA employee or in a Department facility, and the proximate cause of the disability was either 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.  38 U.S.C.A. § 1151.

Contemporaneous VA treatment records from 1994 show that the Veteran was admitted to the Washington, DC, VA Medical Center on March 20, 1994, and discharged on April 12, 1994, after he jumped through a second story window and landed on his feet.  While admitted, he underwent surgery for irrigation and debridement of his ankles, open reduction and internal fixation of the right medial malleolus and right calcaneus, and fusion of the left ankle.  During this surgery, his left extensor halluces tendon was lacerated and a repair was made.

The February 2011 VA examination conducted in connection with this claim contained diagnoses of left ankle fracture with arthrodesis, left extensor hallucis longus tendon laceration, ankylosis great toe, second toe, third toe and fourth toe, and recurrent ulcer dorsal DIP joint left great toe.  The Veteran's representative noted during the Board hearing that the Veteran had damage to his back and right ankle from his altered gait, ongoing issues with his feet and toes, and mental health issues and unemployability, all related to the residuals of the left extensor hallucis longus tendon laceration.

The physician who conducted the February 2011 VA examination opined that it was at least as likely as not that the laceration of the left extensor hallucis longus tendon during surgery was the cause of the Veteran's continued pain, as he did not have problems with this tendon before the surgery.  In March 2014, the same VA physician found that the laceration was not likely due to VA fault, but also that it was an event not reasonably foreseeable due to the scarring of tissues that resulted from the injury and operations.  These opinions are probative, as they were based on examination findings and contained a rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

38 U.S.C.A. § 1151 requires that there be additional disability from VA surgery and that the disability must meet either of two additional criteria in order for a Veterans Court to qualify for compensation under this statute.  One of those two criteria is that the proximate cause of the disability was an event not reasonably foreseeable.  The opinions of the VA physician reflect that there was additional disability in the form of residuals of the laceration of the left extensor halluces tendon from the surgery and that the cause of this disability was an event not reasonably foreseeable.  As the criteria for compensation under 38 U.S.C.A. § 1151 have been met, entitlement to compensation under this statute is warranted.


ORDER

Entitlement to compensation for residuals of laceration of the left extensor halluces tendon under the provisions of 38 U.S.C.A. § 1151 is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs