Citation Nr: 20021175 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 18-55 025 DATE: March 24, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left radial nerve palsy (claimed as left arm/hand disability) is denied. FINDINGS OF FACT 1. On December 4, 2015, the Veteran underwent total left shoulder arthroplasty/shoulder replacement at the VA Medical Center (VAMC) in Indianapolis, Indiana. 2. The preponderance of the evidence reflects that any complications during the Veteran’s December 4, 2015 left shoulder surgery was not the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in providing care or treatment. 3. The evidence does not demonstrate that the complications during the Veteran’s December 4, 2015 left shoulder surgery was due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for left radial nerve palsy (claimed as left arm/hand disability) have not been met. 38 U.S.C. §§ 1151, 5102, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1955 to February 1957. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019 the Veteran and his son testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In November 2019, this matter was remanded for further development, to include a VA examination. Entitlement to compensation under 38 § U.S.C. 1151 for left radial nerve palsy Under 38 U.S.C. § 1151, compensation is awarded for a “qualifying additional disability” in the same manner as if such additional disability or death were service connected. The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). To be considered a “qualifying additional disability,” in these circumstances, a disability must meet two criteria. First, it must not be the result of the Veteran’s willful misconduct. Second, the disability must have been either: (a) caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (ii) an event not reasonably foreseeable; or (b) proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. Id. To determine whether the Veteran has an additional disability, VA compares the condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the condition after such treatment has stopped. 38 C.F.R. § 3.361(b). The Veteran asserts that his current left arm/hand disability is a result of a left shoulder surgery performed at VA. He testified that he was told by someone at the company that manufactured the joint that was used for his surgery that his collarbone was too long and that his shoulder was not prepared for the joint that was used. See hearing transcript, page 4. On December 4, 2015, the Veteran signed a Consent for Clinical Treatment/Procedure. Therein, the VA providers supplied information about the left shoulder arthroplasty/shoulder replacement the Veteran underwent on the same day. Important to the Board’s analysis, the Veteran’s signed consent form described the known risks and side effects of the left total shoulder arthroplasty/shoulder replacement. In a September 2017 opinion, the VA examiner stated that it is less likely than not that the Veteran’s left radial nerve palsy resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. He stated that radial nerve palsy is a known and documented complication associated with total shoulder arthroplasty and that the risk of this condition is documented in the informed consent signed by the Veteran acknowledging risk of this complication. Although the VA examiner indicated that VA was not at fault because left arm numbness is a known risk, the Board found in the November 2019 remand that the Veteran’s testimony that the manufacturer informed him that his shoulder was not properly prepared warranted another opinion. Pursuant to the November 2019 remand, a VA opinion was obtained in January 2020. The medical examiner noted that the claims file was reviewed and opined: The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran had no left radial nerve palsy prior to the December 2015 left shoulder total arthroplasty. Radial nerve palsy, in addition to nonspecific numbness, tingling, pain, weakness in the upper extremity, are known risks of the total shoulder arthroplasty procedure. The Veteran has well documented left radial nerve palsy since December 2015 left shoulder total arthroplasty, better over time with therapy, but persisting to present. Therefore, the Veteran’s left radial nerve palsy did develop due to the December 2015 left shoulder total arthroplasty, done at VA. Regarding whether or not the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel the examiner indicated, in part, that left radial nerve palsy is a known risk factor of the left shoulder total arthroplasty procedure, even if all standards of care are met. Thus, the existence of the left radial nerve palsy does not specifically represent any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing treatment. Regarding whether the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provide the examiner indicated it is less likely than not that the additional disability of left radial nerve palsy resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. She reiterated that radial nerve palsy, in addition to non-specific numbness, tingling, pain, weakness in the ipsilateral upper extremity, are known risks of the total shoulder arthroplasty procedure, thus included in the informed consent process prior to the procedure. The VA providers and Veteran then were aware of the risk of left upper extremity numbness, tingling, pain, weakness, to include left radial nerve palsy, prior to the procedure, thus foreseeable. Regarding whether there was any failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress, the examiner indicated it is less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed left radial nerve palsy allowed the left radial nerve palsy to continue to progress. She reasoned that the Veteran experienced left hand/wrist numbness and weakness persisting after the initial post-operative period. At the Veteran’s initial post-operative follow up December 17, 2015, he was sent to occupational therapy (OT) for home exercises and wrist splinting due to the left wrist / hand symptoms and findings suggestive of left radial nerve palsy. She indicated the Veteran was then treated in OT 2 more times before VA consult placed for community care, per Veteran request. She noted that the Veteran then did not attend OT for 2 months because he thought he would have to pay for the services. The examiner observed that there was no evidence in the claims file to suggest that VA was advised that Veteran was not attending OT, until a routine Orthopedic follow up at VA in March 2016, at which time OT restarted at VA and continued for 1-2 years. When the Veteran presented to OT again in March 2016 the record documented that he had not been doing home exercises as instructed and had not been wearing the wrist orthosis to stabilize left wrist and hand. The examiner indicated that since OT re-initiated in 2016, the Veteran’s left wrist and hand symptoms improved overall, though not back to baseline. The examiner found that the record clearly shows that VA clinically identified the left radial nerve palsy at first post-operative follow up and began appropriate treatment/consultation, and his left nerve palsy improved over time with proper therapies. Furthermore, VA was not aware during that 6 to 8-week period that the Veteran was not in OT because he did not notify VA of any problems with the consult until March 2016. The examiner therefore concluded that there was no failure on the part of VA to diagnose or treat promptly and/or appropriately. Finally regarding whether it appears from the evidence, to include the Veteran’s lay statements, that his left shoulder was not adequately prepared for joint replacement surgery, the examiner indicated it is less likely than not that the Veteran’s left shoulder was not adequately prepared for joint replacement surgery. She reasoned the Veteran’s lay statements regarding the preparation of left shoulder for joint prosthesis are statements from second or third hand, supposedly from a vendor of the prosthesis of unknown clinical qualifications, without any documentation to support the position. She said as a Family Medicine Physician, it is beyond her scope of practice to determine if the left shoulder preparation met specific criteria that may exist for the given joint prosthesis used in Veteran’s left shoulder total arthroplasty. She stated that only a Board-Certified Orthopedic Surgeon is qualified to determine if joint preparation met any special criteria for the Veteran’s specific joint prosthesis. The examiner indicated; however, she could state with certainty that, based on the record, the Veteran’s left shoulder joint hardware is in good alignment without loosening and without any evidence for inappropriate fit or failure of the hardware. Therefore, as the Veteran’s left shoulder prosthesis remains in good position and functions as intended, based on the record, it can be extrapolated that his left joint was generally prepared as appropriate to accommodate the prosthesis. The Board observes, upon review of the Veteran’s treatment notes, there is no competent medical evidence to support that he suffered additional disability as a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. See 38 U.S.C. § 1151(a). The Board finds that the most recent January 2020 VA examination report is supported with sufficient rationale and based on an accurate factual history. As a result, the Board finds this opinion is adequate and of probative value, regarding the Veteran’s claim on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). After review of the probative and competent evidence of record the Board finds that the Veteran’s left shoulder surgery was proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instant of fault on the part of VA, nor an event not reasonably foreseeable. The Veteran has provided his lay opinion/testimony, in support of his claim, and the Board does not doubt the sincerity of his assertions. However, he is not shown to possess the level of experience or training needed to provide a competent opinion that requires the understanding of internal physical processes, surgery, and anatomical relationships. The Board concludes that the preponderance of the evidence is against the claim for compensation under 38 U.S.C. § 1151, and there is no doubt to be otherwise resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.