Citation Nr: 20009941 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-23 668 DATE: February 6, 2020 ORDER Entitlement to a rating higher than 10 percent for postoperative residuals of an amputation of the second left finger distal interphalangeal (IP) joint is denied. REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for postoperative residuals of right total hip replacement is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for bilateral optic nerve atrophy with visual acuity and field loss due to ischemic optic neuropathy is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include on a secondary basis, is remanded. Entitlement to a rating higher than 10 percent for a painful surgical scar associated with postoperative residuals, amputation, second left finger, distal IP joint is remanded. FINDING OF FACT The Veteran’s amputation of the left index finger is rated 10 percent disabling, which is the maximum schedular rating allowable for amputation at the distal joint. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for postoperative residuals of an amputation of the second left finger distal IP joint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5153. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from October 1966 to October 1968. Issue 1: Entitlement to a rating higher than 10 percent for postoperative residuals of an amputation of the second left finger distal IP joint. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service treatment records show that the Veteran’s left index finger was amputated at the distal IP joint. A VA examination in April 2014 shows that the Veteran had amputation through the middle phalanx or at the distal joint. He complained of the finger feeling cold all the time. On VA examination in December 2014, the Veteran continued to complain of the left index finger getting cold. X-ray was negative except for partial amputation of the distal portion of the middle phalanx and complete application of the distal phalanx. While the examiner noted that the Veteran’s description of his left index finger symptoms is consistent with Raynaud’s phenomenon, the examiner explained that limitation to a single digit entity is not consistent with this clinical entity and is not a complication of amputations. The Veteran is in receipt of a 10 percent rating under Diagnostic Code 5153, applicable to amputation of the index finger, which is the maximum available rating for amputation through middle phalanx or at distal joint for either extremity. A greater rating under the diagnostic code addressing the Veteran’s amputation is thus unavailable.   REASONS FOR REMAND Issues 2-5: Entitlement to compensation pursuant to 38 U.S.C. § 1151 for postoperative residuals of right total hip replacement; entitlement to compensation pursuant to 38 U.S.C. § 1151 for bilateral optic nerve atrophy with visual acuity and field loss due to ischemic optic neuropathy; entitlement to service connection for an acquired psychiatric disorder, to include on a secondary basis; and, entitlement to a rating higher than 10 percent for a painful surgical scar associated with postoperative residuals, amputation, second left finger, distal IP joint. As for the claims pursuant to 38 U.S.C. § 1151, in Ollis v. Shulkin, 857F.3d 1338, 1344-46 (Fed. Cir. 2017), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recognized that a veteran may receive benefits under a “referral theory” where VA medical providers are negligent in recommending that the veteran undergo a particular procedure, or by referring the veteran to a particular doctor. The Veteran contends that VA was treating him for knee pain in 2007 and after determining that he had hip problems and not knee problems referred him to Wake Forest Baptist Hospital where he underwent right hip replacement surgery on October 7, 2008. See, e.g. May 2014 statement. He reported that a catheter was not properly placed causing him to go to ICU. Id. He stated that the following morning they gave him a cold water bath, which could have caused the blood clot. Id. The Veteran also pointed out that instead of being placed in the hip replacement ward, he was kept in the main hospital and underwent unnecessary tests. Id. He noted that no exercise could have been a contributing factor for the blood clot. Id. He subsequently experienced problems seeing and on October 13, 2008 was diagnosed with non-arthritic anterior ischemic optic neuropathy and lost sight in his right eye in July 2009. Id. The Veteran noted that although Walk Forest submitted a letter stating this this was a known risk of hip replacement surgery he was never informed of such risk. Id. He further stated that his hip surgery incision became infected and he had to be on antibiotics until May 2009. Id. The Veteran also contended that the surgery left his right leg 3/4 of an inch longer than his left leg. Id. During the December 2019 Board hearing, the Veteran questioned whether he even needed the hip surgery since subsequent physical therapy successfully treated his hip symptoms. VA treatment records in February 2013 show that the Veteran had hip orthosis around his right total hip arthroplasty and his right leg was less than an inch longer than his left leg. A VA eye examination in January 2015 shows optic atrophy, near total vision loss in both eyes, visual field loss, and optic neuropathy in both eyes. The Veteran has not yet been afforded a VA examination for his claimed residuals of right hip surgery. An unfavorable opinion without supporting rationale was received in March 2015 whereby the examiner noted that the review was limited as older information was limited and outside medical records could not be reviewed due to difficulty with CPRS/Vista Imaging. The Board additionally notes that a copy of the Veteran’s actual signed informed consent form relating to his October 2008 hip surgery has not been associated with his claims folder. Under 38 C.F.R. § 17.32 (d), the informed consent process must be appropriately documented in the medical record. In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that require the use of sedation, anesthesia or narcotic analgesia; are considered to produce significant discomfort to the patient; have a significant risk of complication or morbidity; or require injections of any substance into a joint space or body cavity. Id. On remand, an attempt needs to be made to obtain all available evidence pertaining to the consent matter and the Veteran should be afforded appropriate VA examinations for his claimed residuals of his October 2008 right hip surgery. In statement and testimony, the Veteran contends that he has a psychiatric disorder secondary to his October 2008 hip surgery, which is inextricably intertwined with the claims for entitlement to compensation pursuant to § 1151, which are being remanded. See December 2019 Board hearing and April 2017 Form 9 Appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). He also contends that he has Posttraumatic Stress Disorder (PTSD) due to his service-connected postoperative residuals of an amputation of the second left finger distal IP joint. On remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed psychiatric disorder. As for the Veteran’s increased rating claim for a painful surgical scar associated with postoperative residuals, amputation, second left finger, distal IP joint, he was last afforded a VA examination in December 2014. In December 2019 the Veteran testified that his scar is bad and stings easily. On remand he should be afforded a VA examination to determine the current level of severity of his service-connected scar on the second left finger. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to identify all pertinent medical records. With the Veteran’s assistance obtain all outstanding medical records, VA or private, to include any and all consent forms that he signed with regard to his October 2008 right hip surgery. All attempts associated therewith should be memorialized in the Veteran’s claims file. If no signed consent forms are obtained, the reasons for this should be documented in the claims folder. If there had been verbal consent, such should be noted. 2. Take appropriate action to obtain treatment records not already of record that were scanned into Vista Imaging. 3. Afterwards, afford the Veteran an examination with an appropriate clinician to determine the nature and etiology of his postoperative residuals of his right total hip replacement. After reviewing the file, the examiner is asked to address the following: a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran incurred an additional disability (other than eye disability) as a result of his October 2008 total right hip arthroplasty, and, if an additional disability exists, the nature of such disability. b.) If additional disability exists, whether it is at least as likely as not (50 percent probability or greater) that the residual is the result of the October 2008 total right hip arthroplasty. c.) If so, whether the additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or the private hospital, Wake Forest University Baptist Medical Center. d.) If the examiner determines that any such disability was actually caused by the total right hip arthroplasty but that it was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or Wake Forest University Baptist Medical Center, then the examiner is asked to determine whether it is at least as likely as not that the disability or disabilities were due to an event not reasonably foreseeable. The examiner is hereby advised that VA treatment records in February 2013 show that the Veteran had hip orthosis around his right total hip arthroplasty and his right leg was less than an inch longer than his left leg. The examiner also is advised that the Veteran contends that he should have never been referred by VA to Wake Forest University Baptist Medical Center for right hip replacement surgery. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Afterwards, afford the Veteran an examination with an appropriate clinician to determine the nature and etiology of his eye disability, to include bilateral optic nerve atrophy with visual acuity and field loss due to ischemic optic neuropathy. After reviewing the file, including a copy of this Remand, examining the Veteran, the examiner is asked to address the following: a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran incurred an eye disability, to include bilateral optic nerve atrophy with visual acuity and field loss due to ischemic optic neuropathy as a result of his October 2008 total right hip arthroplasty, and, if an additional disability exists, the nature of such disability. b.) If an eye disability exists, whether it is at least as likely as not (50 percent probability or greater) that it is the result of the October 2008 total right hip arthroplasty. c.) If so, whether the eye disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or the private hospital, Wake Forest University Baptist Medical Center. d.) If the examiner determines that any such disability was actually caused by the October 2008 total right hip arthroplasty but that it was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or Wake Forest University Baptist Medical Center, then the examiner is asked to determine whether it is at least as likely as not that the disability or disabilities were due to an event not reasonably foreseeable. The examiner is hereby advised that a January 2015 VA examination shows optic atrophy, near total vision loss in both eyes, visual field loss, and optic neuropathy in both eyes. The examiner also is advised that the Veteran contends that he should have never been referred by VA to Wake Forest University Baptist Medical Center for right hip replacement surgery. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Schedule the Veteran for a VA psychiatric examination with an appropriate examiner to determine the current nature and likely etiology of any diagnosed psychiatric disorder. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. After reviewing the claims folder, including a copy of this remand, and examining the Veteran the examiner must: a.) Offer an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. If so, the examiner must provide an opinion as to whether the PTSD symptoms are related to the amputation of the left index finger at distal IP joint during service. b.) For any psychiatric disorder other than PTSD the examiner must opine whether it is at least as likely as not (50 percent or better probability) that it is related to an in-service injury, event, or disease, to include the amputation of the left index finger amputated at distal IP joint during service; or, (1) caused or (2) aggravated by the service-connected postoperative residuals of amputation of the second left finger distal IP joint. A full rationale should be provided for all stated medical opinions. If the examiner is not able to provide an opinion, he or she should explain why. 6. Schedule the Veteran for an examination to determine the current severity of his service-connected painful surgical scar associated with postoperative residuals, amputation, second left finger, distal IP joint. The claims file must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. The examiner should provide a full description of the scar and report all signs and symptoms necessary for evaluating the scar under the rating criteria. The examiner is asked to address all neurologic abnormalities associated with the Veteran’s service-connected painful surgical scar associated with postoperative residuals, amputation, second left finger, distal IP joint. The examiner is hereby advised that in December 2019 the Veteran testified that the scar is bad and stings easily. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.