Citation Nr: 18157597 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 12-20 447 DATE: December 13, 2018 ORDER Compensation under 38 U.S.C. § 1151 for additional disability associated with treatment for an open mid-shaft second middle phalanx fracture of the right index finger is denied. FINDING OF FACT The weight of the competent evidence is against a conclusion that the Veteran sustained additional disability associated with treatment for an open mid-shaft second middle phalanx fracture of the right index finger that was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or due to an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for additional disability associated with treatment for an open mid-shaft second middle phalanx fracture of the right index finger are not met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Laws and Regulations When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Title 38, United States Code § 1151 provides compensation in situations in which a claimant suffers an injury or an aggravation of an injury resulting in additional disability or death by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or the proximate cause of additional disability or death was an event which was not reasonably foreseeable. 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 is the action or event that directly caused the disability, 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 medical treatment proximately caused a Veteran’s additional disability, it must be shown that the medical treatment caused the Veteran’s additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) 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), (d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim to be 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 of 38 C.F.R. § 17.32 of this chapter. Schertz v. Shinseki, 26 Vet. App. 362 (2013); 38 C.F.R. § 3.361(d)(2). Discussion The Veteran contends that his right index finger is paralyzed as a result of alleged improper treatment received from a VA medical center in March 1986. Specifically, the Veteran claims that he was treated for a fractured finger and that a brace was improperly applied to his finger, which caused his current finger disability The record shows that in March 1986, the Veteran presented to the VA medical center for treatment of a fractured right finger due to a dog bite. Treatment notes show the hand was soaked in a betadine solution. An X-ray revealed a fracture of the shaft of the middle phalanx of the right index finger with near anatomical alignment of fractured fragments. The Veteran’s finger was immobilized in a metallic splint. X-ray reports from April 1986 revealed no significant changes from the March 1986 X-ray report. A May 1986 X-ray report showed that the Veteran’s right index finger had satisfactory position and alignment. A July 1986 X-ray report noted an increased callous since May 1986. In June 2015, a VA opinion regarding the etiology of the Veteran’s claimed finger disability was obtained. The examiner noted that the Veteran had ankylosis of the right DIP joint and reduced range of motion of the PIP. While the examiner indicated that the Veteran did not receive improper care by VA and that his finger disability was merely a complication of the fracture, he also speculated that there was the possibility that VA was responsible for the Veteran’s claimed finger disability. In particular, the examiner stated that, “it appears that the splint may have been too tight but it is a matter of judgment,” and, “the current and eventual deformity may have been ameliorated by the provider if the splint had been removed before 7 days, but this is a matter for speculation.” The examiner did not expand on his opinion that making such determinations would be speculative. Thus, the Board of Veterans’ Appeals (Board) sought an addendum opinion, which was received in October 2016. The clinician who completed the October 2016 opinion, rendered by the same clinician who completed the June 2015 opinion, offered the following in response to the posed question of whether it was at least as likely as not that the Veteran has an additional right index finger disability as a result of the treatment provided by VA in March 1986: On balance[,] the medical care received by this [V]eteran for his right index finger was in accordance with the prevailing medical care. The current and eventual deformity may have been ameliorated by the provider if the splint had been removed before 7 days, but this is a matter for speculation. There does not appear to be a deliberate act of negligence but rather a not uncommon complication of the fracture of a DIP joint. The clinician provided an identical response in October 2016 to the second question posed, that of whether if such additional disability was shown, whether it was the result of, or caused by, a lack of proper care of negligent treatment on the part of VA caregivers. In response to the posed question of whether additional disability was an event not reasonably foreseeable, the examiner responded that the splinting was standard treatment and the swelling that ensued could not have been reasonably predicted. Finally, the examiner stated that the Veteran’s right index finger disability was the direct result of the fracture and not due to an unforeseen event and that the fracture is and was the proximate cause of the deformity. The Board found that insofar as the examiner in his October 2016 addendum opinion did not directly respond to the question of whether the Veteran has an additional right index finger disability as a result of treatment provided by VA in March 1986 nor provide an opinion as to why making certain determinations would be speculative, the Board found that a medical expert opinion from the Veterans Health Administration (VHA) in accordance with VHA Directive 2010-044 was necessary. The requested VHA opinion, completed in July 2018, was as follows: According to the medical record, [the Veteran] suffered an open fracture of the midportion of the middle phalanx of his right index finger with a[n] open wound on the dorsum of the finger. He was treated with Betadine soaks, splinting, antibiotics[,] and pain medication. With his medical notes saying he should be seen by orthopedics the same day[,] he was seen in orthopedics and splinted appropriately. My opinion as to the question of whether or not he should have be[en] taken out of the splint in 7 days [is as follows:] If [the Veteran] had been taken out of his splint   at 7 days[,] he would have lost the position of his middle phalanx fracture and would have required surgery and probably would have had a more undesirable result. There is no mention in the medical record of the dressing [being] too tight. He was immobilized for approximately 4 weeks than started on range of motion exercises. The ankylosis of his DIP joint I believe was caused entirely by the dog bite and not by his treatment at [the] VA hospital. A dog[] bite of sufficient force to fracture [a] finger is essentially a crushing injury and having stiffness in the DIP joint [following such a bite] would be expected. After reviewing the medical record in detail, [I] do not see any evidence for any deviation of the standard of care in treating this injury. The record does not reflect any contrary opinion to the negative opinions rendered in this appeal as described above. To the extent the assertions of the Veteran or his representative are being advanced in an attempt to establish that the Veteran sustained additional disability in his right index finger that was proximately caused by improper treatment by a VA health care provider, rendering such an opinion requires an understanding of a complex medical and physical process, and neither the Veteran nor his representative are competent to render such an opinion. As such, neither the Veteran nor his representative can support the claim for benefits provided by 38 U.S.C. § 1151 in the instant appeal, nor counter the negative medical opinions, on the basis of lay assertions alone. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claims for compensation under 38 U.S.C. § 1151 for additional disability   associated with treatment for an open mid-shaft second middle phalanx fracture of the right index finger. As such, this claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel