Citation Nr: 19180331 Decision Date: 10/22/19 Archive Date: 10/22/19 DOCKET NO. 18-32 464 DATE: October 22, 2019 ORDER Entitlement to compensation under 38 U.S.C. §§ 1151 for a right hand trigger finger disability is denied. FINDING OF FACT The Veteran did not sustain any additional disability nor was his right hand trigger finger worsened because of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or because of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. §§ 1151 for a right hand trigger finger disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to November 1964. A hearing was held before the undersigned veterans law judge in May 2019 in Atlanta, Georgia. The transcript is of record. During the hearing, the VLJ clarified the issue, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103. 1. Entitlement to compensation under 38 U.S.C. § § 1151 for a right hand trigger finger disability The law provides that compensation may be paid for a qualifying additional disability that is 1) not the result of the Veteran’s willful misconduct; 2) was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA either by a VA employee or in a VA facility; and 3) the proximate cause of the disability was 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. § § 1151. VA regulations provide that benefits under 38 U.S.C. § § 1151(a) for claims received by VA on or after October 1, 1997 for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. 38 C.F.R. § 3.361(c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran’s representative. To establish the proximate cause of an additional disability or death, it must be shown that there was 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. Whether the proximate cause of a Veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). The Veteran contends that VA was negligent in treating his right hand trigger finger. Specifically, he alleges that the surgery he underwent at a VA facility in April 2009 made his condition worse. At his hearing, the Veteran testified that prior to his surgery he had full use of the hand, but that after the surgery his condition deteriorated to the point that it is now difficult for him to button shirts and do other activities requiring movement of the finger. VA treatment records show that prior to the Veteran’s surgery he did not have any flexion of the DIP joint. A note five months after surgery indicates that the triggering was resolved, but that the Veteran was still unable to flex the index DIP. He was offered FDP reconstruction and extended rehabilitation, which he declined. The Veteran received a VA examination in January 2017. After examination and review of the Veteran’s medical history, the examiner opined that the Veteran’s trigger finger was not caused or aggravated by VA treatment, to include the April 2009 surgery. The examiner explained that the surgery did not fix the problem, which is a foreseeable outcome of any orthopedic surgery. Further, the Veteran was offered another surgery or rehab and declined. The examiner also indicated that the treatment offered the Veteran was appropriate for his condition and that the resulting condition was not the result of an event not reasonably foreseeable. After a review of all the lay and medical evidence, the Board finds the preponderance of the evidence is against a finding of entitlement to compensation for right hand trigger finger. The January 2017 VA medical opinion is supported by explanations based on the examiner’s medical knowledge, medical literature and review of the Veteran’s record. The Veteran has not submitted any additional medical evidence or opinion from another medical professional indicating that VA was careless, negligent, lacked proper skill, erred in judgment or had other fault that ultimately resulted in the Veteran having an additional disability. The Board has no reason to doubt the competency or the veracity of the January 2017 VA medical opinion. The assessment is uncontroverted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). Though the Veteran is competent to provide lay testimony regarding the symptoms he observed, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in a worsening of his right hand trigger finger. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Barr, 21 Vet. App. at 307. Thus, compensation pursuant to 38 U.S.C. § § 1151 for right hand trigger finger is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.