Citation Nr: 1817167 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 14-24 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for Dupuytren's Contracture right (dominant) hand. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION This Veteran served active duty in the U.S. Air Force from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran had a Board hearing in June 2016. In January 2018, the Veteran was informed that the Veterans Law Judge that held the hearing was no longer with the Board and he was offered an opportunity to request an additional hearing. The Veteran has not since requested another hearing. This case was previously before the Board in April 2017, where the issue on appeal was remanded for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran did not incur Dupuytren's Contracture as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or as the result of an event not reasonably foreseeable. The Veteran was informed of the risks associated with his right hand surgery. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for Dupuytren's Contracture right (dominant) hand have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 38 U.S.C. § 1151 Claim Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358(a) (2017). In essence, there are three elements required to establish benefits under 38 U.S.C. § 1151: there must be (1) additional disability; (2) a causal nexus between the VA treatment (medical, surgical or hospitalization), an examination, or vocational rehabilitation under chapter 31 and the additional disability; and (3) a finding of fault or a finding of an event that was not reasonably foreseeable. Each element is a prerequisite for the subsequent element. 38 U.S.C. § 1151; 38 C.F.R. § 3.361 (2017). Analysis The Veteran contends that he suffered additional disability as a result of a right hand surgery performed at the VAMC in Pittsburgh, Pennsylvania in April 2011 and because of various delays in treatment for his right hand both prior to and after the surgery. Additionally, in his June 2016 Board hearing, the Veteran asserted that VAMC delays caused his asserted additional injury. Specifically, he asserted that surgical repair of his right hand condition was delayed nearly two years and that there was a delay in scheduling his post-surgery occupational therapy. The Veteran's additional disability is a right fifth finger contracture. In this instance, the competent medical evidence is against a finding that the Veteran's Dupuytren's Contracture is a result of the right hand surgery performed by VA or associated care. VA obtained a medical opinion in December 2017, which the Board finds highly persuasive. The examiner had an opportunity to review the entire record, including the VA treatment records from the facility that treated the Veteran during his surgery, as well as the records prior to the surgery. The examiner also took into account the Veteran's lay assertions. Moreover, the examiner used current medical literature in arriving at her conclusion. At the outset, she opined that the Veteran is a credible witness, and she considered the Veteran's lay statements in formulating her medical opinion. She noted that Dupuytren Contracture is a "benign fibrosing disorder of the palmar fascia" with or without contracture of the finger. See December 2017 Medical Opinion. She stated that although the etiology is not known, the palmar fascia fibrosing is progressive and often leads to distal digital joint contracture with or without ankylosis. She opined that the physician's opinion in May 2009, to carefully watch the hand and forego surgery was at least as likely as not correct and within medical principles because the clinical findings were mild and the fifth digit was reducible. Next, she opined that it is less likely than not that the Veteran's claimed additional disability for Dupuytren Contracture, and surgical intervention warrants additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable or shown that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider or that VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. She reasoned that the Veteran did not return to the clinic until January 2011, where the orthopedic surgeon informed the Veteran that with the amount of flexion contracture extensive surgical release would need to be performed to mobilize the joint. Thereafter, the Veteran agreed to consult with VAMC Pittsburgh. Therefore, the Veteran was given informed consent, and VA provided the amount of care reasonably expected by a healthcare provider. Moreover, the January 2011 Pittsburgh VAMC Plastic Surgery showed that the Veteran was informed of the risk and benefits of an operation, including the risks with bleeding, infection, reoperation, nerve or vessel injury, stiffness, weakness, tendon injury, pain, arthritis, and dysfunction despite the operation. Thereafter, the Veteran underwent surgical intervention in April 2011 at the Pittsburgh VAMC. The VA examiner stated that review of the pre-, intra, and post-operative medical records were conducted and all the laboratory testing, assessments, and medical clearance were normal and safe limits for elective right hand surgery. Likewise, the examiner stated that all intra-operative and post-surgical notes demonstrated an uncomplicated surgical procedure and tolerance of anesthesia without complications and/or unforeseen events. Therefore, she opined that it is less likely than not that the Veteran's claimed additional disability for Dupuytren Contracture, right hand and surgical intervention warrants additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA or by an event not reasonable foreseeable or shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Further, the examiner stated that one day post-operation, the Veteran called the telephone triage with complaints of right hand pain, numbness and concerns of hand swelling and cellulitis. Although the Veteran was unable to see if his hand was actually swollen due to bandages, the Veteran was instructed to return to the VAMC or seek medical care. The Veteran informed the triage nurse that he refused to return to the VAMC. The examiner stated that in accordance with the policy and procedures of the telephone triage unit, the telephone triage RN called Telecare. Therefore, the examiner opined that it is less likely than not that the Veteran's claimed additional disability for Dupuytren Contracture, right hand and surgical intervention warrants additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA or by an event not reasonable foreseeable or shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider. Similarly, the examiner opined that it is less likely than not that the Veteran's claimed additional disability for Dupuytren Contracture, right hand and surgical intervention warrants additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA or by an event not reasonable foreseeable or shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider based on the VA's handling of the Veteran during postoperative evaluation. Specifically, on April 20th, the Veteran's dressings were removed with the surgical incision without any evidence of infection or drainage. The Veteran was seen in occupational therapy, a splint was made for his right hand, and he was provided supplies to change his dressings. For the duration of postoperative follow-ups and therapy, the examiner opined that it is less likely than not that the Veteran's claimed additional disability for Dupuytren Contracture, right hand and surgical intervention warrants additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA or by an event not reasonable foreseeable or shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare. She noted that the Veteran was sent to occupational therapy for a new splint, was given a note for continual occupational therapy, and was educated on how to perform finger range of motion exercises, all in accordance with the best practices in medical literature. In regards to the actual claimed additional disability based on the right hand surgery, the examiner opined that it is less likely than not that the Veteran has residual and/or additional disability as a result of the April 2011 right hand surgery or as a result of right hand treatment through VA prior to or after surgery but a progression of the same disability, fifth finger contracture, that is independent and separate from the surgical intervention thereof. She stated that Dupuytren is a progressive connective tissue disorder related to proliferation of the palmar fascia (fibromatosis) that results in flexion contracture of the more distal digital joints. Therefore, the Veteran's claimed contracture of the fifth digit is a progression of the disorder despite surgical intervention. The VA examiner concluded that it is less likely than not that the Veteran has residual and/or additional disability as a result of the April 2011 right hand surgery or as a result of right hand treatment through VA prior to or after surgery rather progression of Dupuytren Contracture despite surgical intervention, since there is no residual or additional disability as the result of VA surgical or rehabilitative treatment. In addition, she opined that it is less likely than not that the VA failed to exercise the degree of care that would be expected or a reasonable health care provider; or any additional disability the result of an event not reasonable foreseeable; or furnished the hospital care or medical treatment without the Veteran's consent. To the contrary, and clearly demonstrated throughout the pre, intraoperative and postoperative clinical note, VA exercised the degree of care that would be expected of a reasonable health care provider; or without additional disability the result of an event not reasonable foreseeable; and/or furnished the hospital care or medical treatment with the Veteran's consent. In summary, she opined it is less likely than not that the Veteran's claimed additional disability for Dupuytren Contracture, right hand and surgical intervention warrants additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA or by an event not reasonable foreseeable or shown that (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (ii)VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. The Board accords this medical opinion high probative value because the examiner supported her opinion with an adequate rationale. The examiner explained how each part of the Veteran's surgical process was in accordance with the best practices of the medical community. The Board accepts this medical opinion as dispositive evidence as to the question of whether VA's pre-, intra, and postoperative treatment caused the Veteran's additional disability. There is no medical evidence establishing a relationship between the Veteran's claimed additional disability and the VA's treatment. Thus, the only medical evidence of record is against the Veteran's claim. Although the Veteran has contended that his hand disability is the result of the VA's delayed treatment, his opinion is outweighed by the VA medical opinion, which was based on a full review of the record and the Veteran's lay assertions. In consideration of the foregoing, the Board finds that the preponderance of the evidence is against the claim of entitlement to compensation benefits under 38 U.S.C. § 1151. The benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) ORDER Entitlement to compensation under 38 U.S.C. § 1151 for Dupuytren's Contracture right (dominant) hand is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs