Citation Nr: 1800278	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  14-07 197A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to benefits under 38 U.S.C. § 1151 for residuals of status post right shoulder rotator cuff repair, to include right hand carpal tunnel syndrome, lack of circulation ulnar artery, right hand (claimed as circulation of ulnar nerve right hand), Dupuytren's contracture, right hand, and right upper arm disfigurement of muscle, resulting from surgical treatment performed at a VA Medical Center (VAMC) in October 2012.

2.  Entitlement to a temporary total evaluation based on convalescence following an October 2012 right shoulder rotator cuff repair.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Labi, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1972 to January 1974.

This matter comes to the Board of Veterans Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota.  The Veteran has since relocated and jurisdiction currently resides with the RO in Oakland, California.

In November 2016, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing.  A transcript of the hearing is of record.


FINDINGS OF FACT

1.  The Veteran's right hand carpal tunnel syndrome, lack of circulation ulnar artery, right hand, Dupuytren's contracture, right hand, and right upper arm disfigurement of muscle, were not caused by the Veteran's right shoulder rotator cuff repair.

2.  Informed consent from the Veteran was obtained by the VA prior to the right shoulder rotator cuff repair performed at the VA hospital.

3.  Service connection is not in effect for the Veteran's right shoulder or any other medical disability that necessitated the October 2012 right shoulder rotator cuff repair.


CONCLUSIONS OF LAW

1.  The criteria for compensation under 38 U.S.C. § 1151 for residuals of the October 2012 procedure performed by VA, including right hand carpal tunnel syndrome, lack of circulation ulnar artery, right hand, Dupuytren's contracture, right hand, and right upper arm disfigurement of muscle, have not been met.  38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017).

2.  The criteria for a temporary total evaluation based on convalescence for the October 2, 2012 right shoulder rotator cuff repair, have not been met.  38 U.S.C. §§ 1110, 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.30 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Compensation under 38 U.S.C. § 1151

The Veteran contends that as a result of the October 2012 right torn rotator cuff surgery, due to negligence and/or as a result of an event not reasonably foreseeable, that entitlement to compensation under 38 U.S.C. § 1151 is warranted.  The Veteran contends that his right hand carpal tunnel syndrome, Dupuytren's contracture of the right hand, lack of circulation of the ulnar artery of the right hand, and right upper arm disfigurement of muscle are due to his right shoulder rotator cuff repair.

In general, VA compensation benefits are awarded for disability due to injury or disease incurred during or aggravated by active military service. 38 U.S.C. §§ 1110, 1131 (2012). Section 1151 of Chapter 38 of the United States Code provides that compensation for a qualifying additional disability shall be awarded in the same manner as if such disability were service connected. A disability is a qualifying additional disability if it was not the result of the Veteran's willful misconduct and was caused by hospital care, medical or surgical treatment, or examination furnished by VA, and was proximately caused by (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or (ii) an event not reasonably foreseeable. 38 U.S.C. § 1151 (2012).

To determine whether a veteran has an additional disability, his condition immediately before the beginning of the VA hospital care, medical or surgical treatment, or examination upon which the claim is based is compared to his condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b) (2017). 

To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped.  38 C.F.R. § 3.361(b).  To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability.  Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause.  38 C.F.R. § 3.361(c)(1).

The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.  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 treatment, or surgical treatment, proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical treatment, or surgical treatment, caused the veteran's additional disability or death, and that VA either: (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 treatment, or surgical treatment, without the veteran's informed consent.  See 38 C.F.R. § 3.361(d).

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.  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 described in 38 C.F.R. § 17.32.  See 38 C.F.R. § 3.361(d).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and it may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis, but does not extend to complex medical questions.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

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 language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done.  The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion.  The practitioner must advise if the proposed treatment is novel or unorthodox.  The patient may withhold or revoke his or her consent at any time.  38 C.F.R. § 17.32(c).

To determine whether there was informed consent, VA must consider whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32.  Minor deviations from the requirements of 38 C.F.R. § 17.32, which prove to be immaterial under the circumstances of a particular case, will not defeat a finding of informed consent.  Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b) (i.e., in emergency situations).  See 38 C.F.R. § 17.32(c).

In October 2012, VA performed right shoulder rotator cuff repair to address the Veteran's shoulder pain and limited range of motion.  The operation report is of record and the record indicates that the Veteran signed informed consent forms prior to treatment for his shoulder.

VA treatment notes received in July 2013 include an August 2012 record indicating that the Veteran complained of right shoulder pain beginning a couple of months prior.  The examiner noted limited range of motion for the right shoulder, but no other deformities were noted.  A September 12, 2012 record indicates that the right shoulder showed excellent strength of external rotation, abduction and with no impingement signs but with tenderness over the humeral head laterally and no atrophy.  The impression was rotator cuff tear right shoulder with tendinitis.  A record dated October 19, 2012 indicates that the Veteran rated his right shoulder pain as a 1 out of 10.  A note dated  January 14, 2013 indicates that the Veteran was 3 months post rotator cuff repair of the right shoulder and that the Veteran has been working with the physical therapist.  The record notes that motion degenerates pain in the middle of the upper arm above the deltoid insertion.  The note indicates that the Veteran has Dupuytren's contracture, which was not as prominent on his prior visit.  The note indicates that examination of the right hand shows Dupuytren's contracture and notes that Tinel sign was negative but Phalen's sign was positive.  The record indicates that Allen test showed no circulation in the ulnar artery with excellent radial artery flow.

A medical treatment record from Trinity Hospital provides a neurodiagnostic report completed by Dr. K on December 20, 2012, indicating that Dr. H was the referring physician.  The record indicates that testing was conducted due to reports of numbness and weakness in the Veteran's right hand with pain in the right shoulder, status post rotator cuff surgery.  The examiner's impression was that findings were consistent with moderate right carpal tunnel syndrome.  The examiner noted that an EMG needle examination of the right upper extremity, showed complex repetitive discharge with increased motor unit duration and amplitude, a few polyphasics, and moderately decreased recruitment in the triceps muscle, but with normal cervical paraspinal muscle EMO at rest.  The examiner indicated that the pattern of abnormality in the triceps muscle could suggest a possible involvement of the right radial nerve, posterior cord, or brachial plexus, and that the "exact localization of which, however, cannot be determined on the basis of the EMG examination alone."  The examiner indicated that "occasional regrowth of paraspinal branches from the cervical roots over time could abolish fibrillations and positive waves in the paraspinal muscles, and therefore, the possibilities of cervical radiculopathy or brachial plexopathy" could not be entirely excluded at that time.  The record indicates that EMG examination of the right upper extremity showed submaximal activation of the flexor carpi radialis, extensor digitorum communis, and deltoid muscle in the right upper extremity.  The examiner noted that the Veteran reported that his right hand swells and is tender to touch or pressure diffusely, "which may not be entirely explainable on the basis of the EMG/nerve conduction study findings abnormalities, including carpal tunnel syndrome."

A consult request record, dated September 7, 2012, documents that an MRI scan of the right shoulder indicated supraspinatus tear with no retraction right shoulder with mild A/C joint arthritis and acromial spurs.  The impression was rotator cuff tear right shoulder with tendonitis.  The record indicates that the Veteran has had no problems, broken bones, or any other procedures done to his right arm.

A treatment record dated January 14, 2013, indicates problems of right hand and shoulder pain.  The record indicates that pain was noted as 3 out of 10 in the right hand and has been present since September 2012.

In a February 2013 statement, the Veteran indicated that he reported to the Fargo VAMC on October 2, 2012 for a right torn rotator cuff surgery.  The Veteran stated that he had no previous problems with carpal tunnel, Dupuytren's right hand, circulation in right ulnar nerve, or shifted muscle (unremarkable muscle tone of right arm upper).

VA treatment notes provide an orthopedic attending note dictated on February 28, 2013 and entered on March 4, 2013 indicating that the Veteran was "status post a Neer decompression and rotator cuff repair," performed in October 2012.  The note indicates that the Veteran never had any symptoms consistent with infection following the surgery, and that everything healed well.  The Veteran noted no significant burning pain but noted that the pain was continuous at a 3 and when it is severe the Veteran grades it a 10.  He notes that he has had weakness since the surgery and locates the majority of his pain down about the deltoid tuberosity of the humerus.  The record indicates that he had no neurological complaints radiating distally into the fingers and no contralateral shoulder complaints of significance.  The record notes that the Veteran was complaining of some paresthsias in the right hand that he felt were made worse with the Dupuytren's that was developing.

Physical examination showed that the Veteran was in no distress.  The examiner noted good cervical range of motion without pain or reproduction of complaints.  The note indicates that the sternoclavicular joint is benign, the incision healed nicely, and there was no hypersensitivity, no erythema, no swelling, and no drainage.  The active motion is limited on the involved right side to approximately 90 degrees of forward flexion and abduction.  The grip was intact, and the pulse was good with no clubbing, cyanosis, or edema.  The note indicates that the Tinel's, modified Phalen's, and squeeze tests were negative.  No signs of tendinitis were noted, and the elbow was benign with good range of motion and no tenderness.  Moving proximally, the biceps and triceps testing was normal.  There was some mild tenderness over the greater tuberosity, but there was no tenderness about the area of the lateral humerus in the deltoid tuberosity.  He had pain at the endpoints of motion at which point he noted reproduction of his complaints.

Radiology findings of the humerus indicated no evidence of acute fracture or subluxation.  The radiologist noted ossification along the course of the deltoid, but there was no evidence of acute fracture, subluxation, or dislocation.  The examiner noted that the quality of the bone shows no significant irregularity about the diaphysis, but there was irregularity about the lateral aspect of the acromion.  He notes that there is no cephalad migration of the humeral head, no significant soft tissue calcification, and no obvious abnormality of the elbow joint.  The quality of the bone was otherwise appropriate.  The examiner noted a narrowing of the acromioclavicular joint and some inferiorly-directed spurring of the acromion.  The examiner noted that x-ray findings suggest irregularity at the lateral aspect of the acromion with soft tissue calcification and irregularity at the distal acromion and adjacent clavicle.  The examiner noted a "type 3 configuration of the acromion, significant spurring anteriorly and inferiorly passing under the adjacent clavicle."

The examiner noted the likelihood of degenerative arthrosis of the acromioclavicular joint, and impingement syndrome were likely due to the curvature of the acromion.  The report indicates that the biceps was normally positioned.

A February 2013 plastic surgery consult note indicates a chief complaint of right hand carpal tunnel syndrome and right hand Dupuytren's contracture.  The note indicates complaints concerning right hand carpal tunnel syndrome and right hand Dupuytren's contracture.  In December of 2012 the patient had a median and ulnar nerve conduction study.  The nerve conduction studies were consistent with a moderate right carpal tunnel syndrome; the ulnar nerve conduction studies are normal bilaterally.  The note indicates that the Veteran complained of numbness in the median nerve innervated fingers of the right hand.  He noted that he does have early Dupuytren's contracture but is not having any significant functional issues.  The note indicates that previously the Veteran had an arthrotomy of the right shoulder, anterolateral acromioplasty, and repair of the rotator cuff in December of 2012.  The note indicates that the Veteran has been complaining of pain in the region of the right shoulder with weakness of the right upper extremity since his surgery.

Upon physical examination, the note indicates that the Veteran seemed to have a lot of discomfort around the right shoulder.  The record notes good capillary refill of both hands and fingers and that the Veteran's right hand appeared to only be supplied by the radial artery and no ulnar pulse could be palpated.  The record indicates that the Veteran had no decreased sensation with acute wrist flexion.  He had no Tinel's sign with direct pressure to the right transverse carpal ligament, and he had no right hand thenar wasting.  The note indicates that the Veteran has early Dupuytren's contracture of the right hand with some pits, nodules, and cords involving the palm and the base of the right long and ring fingers.  The record indicates a negative tabletop test and that his left hand was unremarkable.

A primary care clinician note from July 2013 indicates that the Veteran went to the clinic for a pre operation consultation.  The note indicates that the Veteran was having right shoulder surgery on July 17, 2013 at Fargo VA and that the Veteran reported that he previously had surgery in October 2012 and has developed spurs.

VA treatment notes received in February 2013 provide a record from September 2012 indicating that the Veteran described 2-3 months of soreness in the right shoulder.  The impression was a rotator cuff tear right shoulder with tendonitis.  The record indicates that the procedure was "under sterile conditions with his consent after discussing the risks and alternatives, and injected the subacromial bursa of the right shoulder with a mixture of 1.5 mL of Celestone with Lidocaine."  The plan included physical therapy for home exercise program for strengthening of the rotator cuff right shoulder.

In March 2013, the Veteran's wife submitted a statement indicating that the Veteran complained of shoulder pain and was referred to Dr. H at the VA who determined that the Veteran needed orthoscopic surgery to repair his rotator cuff.  The Veteran's spouse stated that after surgery the Veteran was placed with a sling and cushion for 6 weeks, after which he began physical therapy but that he could not finish it because of pain in his deltoid muscle.  The Veteran's spouse stated that Dr. H told the Veteran that he got carpal tunnel and Dupuytren's contractor from the shoulder surgery and that he had "never seen it come on that fast before."  The Veteran's wife also noted that the Veteran had a possible mini stroke after surgery which has affected his short-term memory and balance.

In a March 2013 statement, the Veteran stated that due to the surgery he was also requesting a temporary 100 percent rating.  The Veteran indicated that he was requesting expedited adjudication of his 1151 claim and that he would become homeless as of April 1, 2013.  He stated that he has been allowed to stay at his current location for as long as possible, owing over 5000 dollars in back rent.  The statement indicates that if asked to vacate he will have to return to Washington state, where he will be a homeless Veteran.  A letter from the housing director for his company, showing indebtedness and eviction date is of record.

VA treatment records include a letter from Dr. J.M. on April 8, 2013 indicating that he reviewed the CT scan of the Veteran's shoulder from April 1, 2013.  The physician indicated that the CT scan suggested impingement syndrome due to the presence of a spur on the front of the acromion.  The physician stated that he recalled that the Veteran had "the carpal tunnel addressed first, then tending to the shoulder" and suggested allowing the carpal tunnel surgery to heal and recover and then proceed with fixing the shoulder.  The physician stated that from his perspective the shoulder would likely require surgery.

In an April 2013 letter and a similar letter in March 2014, the Veteran states that on August 4, 2012 he saw his primary care physician who set up his appointments at the VA hospital in Fargo, ND to see Dr. H, the orthopedic surgeon.  The Veteran indicates that he was sent for an MRI and x-rays at the VA hospital and that on the next visit, Dr. H gave him a Cortisone shot in his right shoulder.  The Veteran stated that Dr. H then explained to the Veteran that if the Cortisone shot did not work he would need surgery.  The Veteran noted that at that time he did not have problems with his right arm or hand.  The Veteran stated that on October 2, 2012, Dr. H performed surgery on the Veteran for a torn rotator cuff.  The Veteran indicated that all was well after the surgery, and that he began physical therapy once a week.  The Veteran indicated that after some time in therapy, his right hand began to get numb and he began to have problems with two of his fingers.

The Veteran stated that Dr. H explained that the Veteran had early onset of Dupuytren's contracture, post surgery.  The Veteran was referred to Trinity Hospital for an EMG, conducted by Dr. M.K. who noted that the Veteran had moderate right carpal tunnel syndrome, post surgery.  The Veteran stated in his letter that he thought the right shoulder surgery was a simple surgery and that he was originally told it would be laparoscopic but that on the day of the surgery, he was told otherwise.  The Veteran states that before the surgery, he did not have all the problems he has now and that he was not told that any problems would arise from the surgery.  The Veteran indicates that "this is all unforeseen medical problems."

In July 2013, an examiner from the VA Central Iowa Health Care System, reviewed the Veteran's records, including from the Veteran's initial visits at the Fargo VA in May 2012 to his recent visits.  The records included General Medicine, Orthopedic and Plastic Surgery visits, in addition to the Veteran's operative notes.

The July 2013 examiner opined that in regard to the Veteran's right hand carpal tunnel syndrome symptoms, that it is less likely as not that it was caused by or a result of his rotator cuff repair.  The examiner stated that the surgical procedure itself would have no bearing on this condition but noted that positioning of the extremity during the procedure may cause some nerve pressure resulting in symptoms.  The examiner stated that one would normally expect this to gradually resolve if it is the result of a single episode of nerve compression.  The examiner stated that according to the information provided, "this is an electromyographically positive finding with very minimal correlation on clinical examination."

The July 2013 examiner opined that regarding the lack of circulation in the ulnar artery of the right hand, that it is not caused by or a result of the rotator cuff surgery.  He stated that all examinations of the hand indicated normal capillary refill and adequate circulation to the hand.  The examiner stated that adequate circulation in the hand can be provided by a single artery, with the radial or the ulnar, and that the absence of flow noted on the Allen's test may have been present for a prolonged time prior to the Veteran's surgery.

The July 2013 examiner opined regarding the development of the Dupuytren's contracture in the hand, that this would not be caused by or be a result of the Veteran's rotator cuff repair.  He stated that this condition does not arise from positioning or trauma and would simply be a concomitant development of another condition around the same time as the repair.

The July 2013 examiner opined regarding the right upper arm disfigurement, that the Veteran "certainly has a scar from his surgery."  The examiner stated that the physical examinations of the shoulder postoperatively make no mention of any loss of integrity of the deltoid origin, which was repaired at the time of surgery.  The examiner noted that if there would be a loss, there could be a visible defect in the shoulder.  The examiner stated, however, that without further information, he could not resolve this issue without resorting to mere speculation.  Here, the Board notes that there does not appear to be any further information in existence to provide the examiner for further comment.  

The Veteran submitted two similar statements in November 2013 and March 2014.  He stated that prior to his rotator cuff repair on October 2, 2012, he had no symptoms of Dupuytren's Contracture, Carpal Tunnel syndrome, memory loss, problems with balance, Ulnar artery pulse, a 4mm pulmonary nodule, or scattered punctate matter of increased T2 signal hyperintensity within the peripheral cerebral white matter.  He stated that on September 7, 2012, the surgeon who performed the rotator cuff surgery noted that an MRI scan showed supraspinatus tear with no retraction right shoulder with mild A/C joint arthritis and acromial spurs.  However, the Veteran noted that a record dated October 2, 2012 shows a preoperative diagnosis of a supraspinatus rotator cuff tear in the right shoulder and that the acromial bone spurs detected in the MRI, on the same date, were not mentioned.  The Veteran notes that none of his current problems were mentioned or present at that time.

The Veteran stated that on April 1, 2012, he arrived for his right Carpal Tunnel syndrome release surgery performed by Dr L at the Fargo VA Hospital.  He indicated that prior to the surgery, he had an EMG performed at Trinity Hospital.  He noted that the test revealed an impression of right carpal tunnel syndrome but also that this pattern of abnormality in the triceps muscle could suggest a possible involvement of the right radial nerve, posterior cord, or brachial plexis, exact localization of which, however, could not be determined on the basis of the EMG examination.  The Veteran stated that based on that information, he finds it hard to believe that "a doctor would be hard pressed to do Carpal Tunnel surgery."  The Veteran indicates that his symptoms have continued, that the surgery was not needed, and that additional evaluation and tests should have been completed to determine the problems with his hand and arm.

He questions whether it is possible that he did not have to have the carpal tunnel surgery to begin with and that it was all due to the onset of Dupuytren's contracture from the first surgery and that the Dupuytren's contracture caused false results.

The Veteran indicated that in February 2013, Dr. M wrote a letter to the Veteran indicating that he wanted to confirm that there were no remaining spurs in the Veteran's shoulder.  The Veteran noted that Dr. M informed him that if there was a spur then additional surgery would likely be required.  The Veteran indicates that on April 1, 2013, the Veteran had a CT scan and that on April 8, 2013, Dr. M said that the scan suggests impingement syndrome due to the presence of a spur.

The Veteran questions why two surgeries were required and notes that if the first had been performed properly, the second would not have been needed and he would not have had to spend three days in the VA Puget Sound hospital for Staphylococcus Epidermis.  The Veteran notes that both doctors told him that the surgeries would be arthroscopic but that he now has two scars.  The Veteran notes that he reviewed all of his IMED consent forms, and found nothing to indicate that he could have gotten any of the medical problems that he has now from the surgeries performed.  The Veteran stated that, on one of his forms, dated October 2, 2012, he found that someone signed his name.  The Veteran indicated that he believes that his current conditions are the direct result of the VA Hospital's carelessness, negligence, lack of proper skill, aid error in judgment, and that VA is at fault for furnishing improper care and not following proper policies.

The Veteran stated that since "this all started" that he has lost his job, his housing, and had to move back to Washington.  The Veteran stated that he has had to move to California so that his wife could assist with the care of his mother, who has Alzheimer's.  The Veteran stated that he was waiting to complete his physical therapy "that has been put on hold due to a problem that is going on now with a numbness in my neck and left arm down to my left hand."

VA treatment notes from March 2014, include a record dated January 9, 2014 indicating that the Veteran underwent a right shoulder rotator cuff repair in October 2012 and a distal clavical excision in July 2013 at the North Dakota VA.  It notes that the Veteran developed a superficial abscess over his incision and that he had been having issues with residual shoulder stiffness and pain.  A radiology report dated January 7, 2014 indicates an impression of no acute bony injury and findings of "no acute fracture, dislocation or significant bony abnormality.  There has been resection of the distal clavicle."  In March 2014, records furnished by the Social Security Administration (SSA) indicate that the Veteran receives disability benefits.

At the November 2016 hearing, the Veteran testified that all of his treatment is through the VA.  The Veteran stated that he was diagnosed with a torn rotator cuff and had surgery in October 2012 to repair his rotator cuff.  The Veteran stated that he ended up having a carpal tunnel release, has Dupuytren's contracture, no ulnar nerve pulse, and upper shoulder disfigurement.  The Veteran testified that he received a second medical opinion.  He received an MRI and the doctor informed him that the Veteran would need another surgery because there were bone spurs.  The Veteran testified that he went to Dr. H who gave him a shot in his shoulder and that "when he pulled the needle out, the needle was bent."  The Veteran testified that when he was at the Seattle hospital, and they found that his right shoulder had a hospital-borne infection.  The Veteran testified that he does not know which surgery it is from, but that his "deltoid muscle is no longer in his shoulder."  The Veteran testified that prior to his surgery he did not have his current problems.  The Veteran testified that no one talked to him about the surgery beforehand and that he did not give informed consent regarding the surgery.  He testified that he signed consent forms but that one of the forms was signed by someone else signing his name.

The preponderance of evidence is against a finding that VA's treatment of the Veteran's shoulder caused additional disability.  In, the regard, the July 2013 opinion is the most probative evidence of record.  Just as significant, the evidence is not at least in equipoise that VA failed to exercise the degree of care that would be expected of a reasonable health care provider when preforming the Veteran's rotator cuff repair or the July 2013 surgery.  The July 2013 medical evidence is probative evidence that the Veteran's right shoulder rotator cuff repair was not the cause of the Veteran's claimed conditions.  Based upon the competent and probative medical opinion, and following review of the record, the Board finds that the elements set out in under 38 U.S.C. § 1151 have not been met.

The risks and benefits of this type of surgery were reviewed with the Veteran, and despite the risks, the October 2012 VA physician still found that the surgery was an appropriate action.

In sum, the probative competent medical evidence does not show that the Veteran developed right hand carpal tunnel syndrome, lack of circulation of the ulnar artery in the right hand, Dupuytren's contracture of the right hand, right upper arm disfigurement of muscle, or an additional disability of the right arm or shoulder as a result of the rotator cuff repair.  As noted above, to obtain benefits under 38 U.S.C. § 1151(a), there must be evidence of a qualifying additional disability that was caused by the treatment furnished by VA.

Given the reasoned negative opinion offered by the VA physician in July 2013 which relied on consideration of both the Veteran's medical history and current medical understanding of the risks and benefits of rotator cuff surgery and the effect of the rotator cuff repair, the Board finds that the July 2013 VA examiner's opinion is sufficient to decide these claims.  Importantly, this opinion is not contradicted by any probative evidence of record.

Although the Veteran states that he developed these conditions as a result of the VA rotator cuff repair, there is no evidence to support the Veteran's belief.  Other than his own lay assertions, the medical evidence does not reflect that the Veteran's right hand carpal tunnel syndrome, lack of circulation of the ulnar artery in the right hand, Dupuytren's contracture of the right hand, or right upper arm disfigurement of muscle are due to the rotator cuff repair.  

The Board has considered the statements of the Veteran asserting that his claimed conditions were caused by negligent surgery and foreseeable consequences.  While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a diagnosis or render a medical opinion on this matter.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issues in this case are outside the realm of common knowledge of a lay person because they involve complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  The Veteran has reported that a medical professional has told him that he developed his conditions of Carpal Tunnel and Dupuytren's contracture as a result of the rotator cuff repair.  However, as this statement is not corroborated by any probative and credible medical evidence of record, it is given no probative value.

In sum, the Board finds there to be no objective evidence to suggest that the Veteran's current disabilities were caused by the rotator cuff repair.  Importantly, and contrary to the Veteran's lay contentions, the VA examiner concluded that the Veteran's current conditions were not caused by the rotator cuff repair.  In the absence of competent evidence that demonstrates additional disability caused by VA, the Board concludes that compensation under 38 U.S.C. § 1151 is not warranted for the Veteran's claims.  Accordingly, the Board concludes that the greater weight of the evidence is against the claim.  Because a causal connection must be shown before the question of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or whether an event not reasonably foreseeable was the proximate cause of additional disability, the Board's analysis ends with the conclusion that no additional disability was caused by VA.  Accordingly, the Board must conclude that the greater weight of the evidence is against the claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals for a right rotator cuff repair.

The Board acknowledges that the Veteran has indicated that he did not sign one of the consent forms, however, under the presumption of regularity, obtaining a signature on a consent form is considered a ministerial act.  Thus, his statement that he did not sign the form is insufficient to find that the consent forms are not properly signed.

In this regard, the Board has carefully considered the Veteran's contentions that one of the forms was signed by someone else who signed his name.  The Board is aware of the Court's holding that the presumption of regularity may not be used to conclude that a physician has fully informed a veteran about a particular consequence of a particular medical procedure where the only evidence supporting the presumption is a generic consent form that was filled out properly.  McNair v. Shinseki, 25 Vet. App. 98, 104-107 (2011).  Nonetheless, a physician's failure to advise a veteran of a foreseeable risk may be considered "a minor, immaterial deviation" if it is determined that "a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk."  Id.

The Board finds that there was no absence of informed consent or the occurrence of an event not reasonably foreseeable for the Veteran's disability claimed herein under the provisions of 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(1)(ii),(2).

The facts of the instant case show that the informed consent form discussed that the known risks and side effects of the rotator cuff repair included infection requiring antibiotics, nerve or blood vessel injury, temporary or permanent numbness/weakness of the extremity, associated fractures secondary to the surgical procedure, unsightly or painful scar, unexpected change in procedure at time of surgery, less than complete recovery of normal functions of pain relief.  The Board acknowledges that the consent forms appear to be signed by the Veteran and doctor before the procedure.  It also indicated that the Veteran understood the nature of the proposed procedure, the risks involved, and the expected results.  Further, the Board, as finder of fact, places greater weight on this contemporaneous evidence, than it does on statements made by the Veteran that he was not told of any possible complications.

The Board finds the medical record indicating that informed consent was obtained, as well as confirmation that the Veteran signed the consent form to be credible and of greater probative weight than the Veteran's statements indicating that the consent form was forged.  The Board finds that the weight of the evidence indicates that the Veteran did sign the informed consent paperwork.

Thus, under these circumstances, the claims for compensation under the provisions of 38 U.S.C. § 1151 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 claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


II.  Convalescent Rating

The Veteran contends that he is entitled to a temporary total disability rating for a period of convalescence following a right shoulder rotator cuff repair.

The Veteran does not currently have any service-connected conditions.

A total disability rating will be assigned effective from the date of a hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release, if the hospital treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. See 38 C.F.R. § 4.30(a) (2017).  Extensions of one, two, or three months beyond the initial three months may be made under paragraph 38 C.F.R. § 4.30(a)(1), (2), or (3). Extensions of one or more months up to six months beyond the initial six months period may be made under 38 C.F.R. § 4.30(a)(2) or (3) upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b).

"Convalescence" is defined as the stage of recovery following an attack of disease, a surgical operation, or an injury.  Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary, p. 374 (28th ed. 1994)).  "Recovery" is defined as the act of regaining or returning toward a normal or healthy state.  Id. (citing Webster's Medical Desk Dictionary, p. 606 (1986)).  The purpose of a temporary total convalescence evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation.  Notations in the medical record as to the claimant's inability to work after surgery must be taken into account in the evaluation. 38 C.F.R. § 4.30; see Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden, 11 Vet. App. at 430 (1998).

VA treatment records indicate that the first mention of a right arm condition is from May 14, 2012 where it is stated that the Veteran noticed that he has limited range of motion in his right arm.  He indicated that it had been an issue for the past month but that he did not remember an injury.  The evidence does not show an event, disease, or injury in service, and thus service connection for the Veteran's right shoulder is not established.

VA treatment records and the objective medical findings do not show that either procedure resulted in at least one month of doctor-mandated convalescence following the right shoulder procedures, and the medical records are negative for evidence of postoperative residuals such as incompletely healed surgical wounds, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement.  38 C.F.R. § 4.30.

On appeal, the Veteran's essential argument for entitlement to temporary total evaluation following the October 2012 procedure, appears to be that he continued to experience worsening right shoulder, arm, and hand pain despite having undergone this procedure.  The Board acknowledges the Veteran's assertions, but notes that such symptomatology is contemplated by schedular rating criteria.

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a temporary total rating under 38 C.F.R. § 4.30 for convalescence following the October 2012 right shoulder surgery.  The content of the examination reports have been discussed and outlined above.

The Board notes that the Veteran has not claimed that his right shoulder condition is directly related to service but rather claims that his current conditions are due to a right shoulder rotator cuff repair performed at a VAMC.  There is nothing in the record to show that the Veteran's right shoulder condition was incurred in service.

The assignment of a temporary total rating requires that the Veteran be service-connected for the disability for which the temporary total rating is sought.  A temporary total rating cannot, as a matter of law, be granted for a disability for which service connection has not been granted.  The Board finds that the Veteran's right shoulder condition that lead to the need for the October 2012 right shoulder rotator cuff repair is not a service-connected disability nor may it be considered as such under 38 U.S.C. §  1151 as he is not entitled to benefits under section 1151.

For the reasons described above, the Board finds that a preponderance of the evidence is against the Veteran's claim; therefore, the claim must be denied.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

As a temporary total rating cannot, by law, be granted for a disability for which service connection has not been granted, this claim must be denied.


ORDER

Compensation under 38 U.S.C. § 1151 for residuals of an October 2012 status post right shoulder rotator cuff repair, to include right hand carpal tunnel syndrome, lack of circulation ulnar artery, right hand (claimed as circulation of ulnar nerve right hand), Dupuytren's contracture, right hand, and right upper arm disfigurement of muscle, is denied.

Entitlement to a temporary total rating under 38 C.F.R. § 4.30 for convalescence following the Veteran's October 2012 rotator cuff repair is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs