Citation Nr: 21062260 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 14-34 120 DATE: October 6, 2021 ORDER Entitlement to compensation under 38 U.S.C. §1151 for additional disability of palmer cutaneous neuroma and median neuritis with reflex sympathetic dystrophy of the right hand, due to right carpal tunnel release surgery on September 4, 2009, is denied. FINDING OF FACT The Veteran's additional right hand disability was not due to 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 examinationnor was it the result of an event not reasonably foreseeable; the Veteran was properly informed of the known risks of the procedure. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. §1151 for additional disability of palmer cutaneous neuroma and median neuritis with reflex sympathetic dystrophy of the right hand, due to right carpal tunnel release surgery on September 4, 2009, have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to February 1969. This appeal to the Board of Veteran's Appeals (Board) arose from an August 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). During the current appeal, and specifically in October 2018, the Veteran testified before a Veterans Law Judge. A transcript of the hearing is associated with the file. In June 2019, the Board reopened the claim and denied it on the merits. The Veteran appealed the June 2019 Board decision to the Court of Appeals for Veterans Claims (CAVC or Court), pertaining to the denial of the claim. The Court vacated the decision and remanded it back to the Board for further development in May 2020, pursuant to a Joint Motion for Partial Remand (JMPR). In October 2020, the Board remanded the claim for further evidentiary development. The law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707. Further review of the current appeal indicates that the Board sent the Veteran a letter notifying him of the unavailability of the VLJ who presided over the October 2018 hearing. The Veteran was provided the opportunity to decide whether he wanted another hearing before another VLJ and was informed that, if he did not respond within 30 days of the date of the letter, the Board would assume he does not want a hearing and proceed accordingly. See August 2021 BVA Letter. The Veteran did not respond within the applicable time period. Therefore, the Board will proceed appellate review of this appeal. Entitlement to compensation under 38 U.S.C. §1151 for additional disability of palmer cutaneous neuroma and median neuritis with reflex sympathetic dystrophy of the right hand, due to right carpal tunnel release surgery on September 4, 2009 The Veteran asserts that he developed an additional disability of his right hand as a result of a September 2009 right carpel tunnel release surgery. Specifically, he contends that VA delayed in providing him treatment after the procedure. Under 38 U.S.C. § 1151, compensation should be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and was caused by hospital care, medical or surgical treatment, or examination and the proximate cause was due to (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § § § 1151(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in an additional disability or death. Merely showing that a veteran received care or treatment and that there is an additional disability or death does not establish cause. 38 C.F.R. § 3.361 (c)(1). 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 additional disability or death, it must be shown that the medical treatment caused additional disability or death; and that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the medical treatment without the veteran's, or in appropriate cases the veteran's representative's, informed consent. 38 C.F.R. § 3.361(c), (d)(1). Regarding informed consent, the Veteran asserts that he was not informed of the risks of the carpel tunnel release surgery. Furthermore, he claims that if he was told, he would not have agreed to the procedure. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Under 38 C.F.R. § 17.32, except as otherwise provided in that regulation, no medical treatment or procedure may be performed without the prior, voluntary informed consent of the patient or, in appropriate cases, a representative thereof. In order to give informed consent, the patient must have decision-making capacity and be able to communicate decisions concerning health care. An informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. An informed consent must be appropriately documented in the medical record. In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that: (i) Require the use of sedation; (ii) require anesthesia or narcotic analgesia; (iii) are considered to produce significant discomfort to the patient; (iv) have a significant risk of complication or morbidity; (v) require injections of any substance into a joint space or body cavity; or (vi) involve testing for human immunodeficiency virus. In this current matter, the informed consent pertaining to the September 2009 surgical procedure is associated with the medical records. In the document, the known risks were outlined. Those risks included the following: infection; injury to nerves; paralysis; stiffness or decreased range of motion; pain, numbness, or weakness from nerve injury (temporary or permanent); procedure not curing condition; and needing additional test and treatment. The informed consent also explained the required use of anesthesia and its risks. Alternatives to the procedure were also outlined in the informed consent document. The surgeon signed attesting that the Veteran demonstrated comprehension of the discussion and provided the opportunity to asks questions. The Veteran signed attesting that the procedure and risks were explained to him. He also attested that he was given the opportunity to read the consent form and he chose to have the procedure. See October 2020 VA Medical Treatment Records (CAPRI). The Board finds that the Veteran was appropriately informed about the carpal tunnel release surgery. There is no evidence that he did not have the capacity to consent to the procedure. The informed consent met the requirements outlined in 38 C.F.R. 17.32. Now, the Board will consider whether the Veteran incurred an additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in VA's furnishing of surgical treatment. Prior to surgery, he was assessed with carpel tunnel syndrome of the right hand/wrist. On September 4, 2009, he underwent carpel tunnel release surgery of his right hand. There were no complications, including from anesthesia, noted due to the procedure. The Veteran was instructed to not wait until pain reached an intolerable level before taking pain medication and to notify the doctor if pain was not relieved to an acceptable level with pain medications. See September 2004 Nursing Post-Operative Note. On September 5, 2009, in a telephone call, the Veteran reported throbbing pain. He was taking medication for pain. There was no swelling or discoloration. Fingers were warm, and he was keeping them elevated. The Veteran was instructed to call the hospital if pain did not ease, if his fingers were cold or swollen, or if there were sensation changes in his fingers. He was able to get about without problems. He responded that his questions were answered by the staff. He also denied experiencing any unusual and unexpected pain. See September 2009 Nursing Telephone Encounter Note. On September 17, 2009, the Veteran was seen for his post-operative follow-up. He reported that he was doing well post-operatively. There was some mild soreness and occasional tingling in the tips of his digits. It was explained that those symptoms were normal after his type of procedure and should resolve over the next three to four months. Upon examination of his hand, there was no drainage or infection noted. There was only a light dehiscence that was minimal. The Veteran experienced some mild pain when attempting to flex or extend. Neurovascularly, the digits were intact. The Veteran's wound was washed with alcohol and ChloraPrep. Sterile strips were applied to the wound and covered with dry sterile dressing. See September 2009 Consultation Report. On September 25, the Veteran reported severe pain. Upon examination, there was mild dehiscence of the proximal wound and some purulent drainage. It was painful for the Veteran to move digits due to the pain. The wound was cleaned. The Veteran was placed on Keflex. See September 2009 Nursing Note. In October 2009, the Veteran reported doing much better and experiencing less pain. He endorsed difficulty making a fist as well as flexing and extending his wrist. The incision was healing up well. See October 2009 Consultation Report. In November 2009, the Veteran reported persistent right hand pain and numbness. The impression given after examination was persistent pain on the proximal palm related to carpal tunnel release and the superficial infection and ulnar neuritis, probable neuropathy, related to cubital tunnel syndrome. See November 2009 Consultation Report. In January 2010, the Veteran still endorsed a significant amount of pain and sensitivity. Upon examination, the incision was noted to have healed, and there were no signs of any infection. Due to the pain, he was not comfortable with a fuller examination of his hand. The surgeon was paged, and it was noted that the surgeon would evaluate the Veteran further. See January 2010 Consultation Report. Based on the evidence, it is evident that the Veteran has incurred an additional disability of his right hand aside from the original carpel tunnel syndrome diagnosis. However, the fact that he has incurred an additional disability does not itself warrant entitlement to compensation. A determination needs to be made as to whether the Veteran's disability was caused by any error from the surgical or medical treatment furnished by VA. In March 2010, the VA examiner noted that the Veteran had a diagnosis of median neuritis and reflex sympathetic dystrophy of the right hand and forearm. The examiner opined that there was no evidence of carelessness, negligence, lack of proper skill or error of judgment by VA practitioners. The examiner noted that the resulting problems are known complications of the surgery. In December 2020, the VA examiner opined that there is no evidence of potential complications or unanticipated findings during the September 2009 surgery. While pain was reported on the September 2009 nursing postoperative phone call, this was well anticipated and expected following carpal tunnel release surgery. There were no specific features of the pain that raised alarm for abnormality. The examiner explained that the subsequent follow-up which occurred at two weeks was the standard postoperative follow-up following a carpal tunnel surgery. Complications such as palmar cutaneous neuroma and median neuritis with reflex sympathetic dystrophy are well documented in the medical literature. The examiner provided citations to medical literature in support of this conclusion. After a thorough consideration of the evidence of the record, the Board finds that the preponderance of the evidence is against the finding that the Veteran's right hand disability was the result of carelessness, negligence, lack of proper skill or error in judgment in the surgical procedure and follow-up treatment. As extensively outlined above, the Veteran's resulting disability and symptoms are known complications of the procedure. There were no complications noted during the procedure. As previously discussed, the Veteran was informed of the risks, which included nerve injuries, pain, decreased motion, and infections. Therefore, the Veteran's residuals symptoms were reasonably foreseeable. Regarding the Veteran's assertion of delayed treatment post-operation, the examiner indicated that the two week post-operative follow-up was standard for the procedure. Additionally, in the September 2009 Nursing Telephone Note, when the Veteran reported pain one day after the surgery, he denied experiencing any unusual or unexpected pain. The Veteran was also instructed to contact the doctor if he experienced continued symptoms of pain or different sensations or symptoms in his fingers. Again, it has been noted that those symptoms were the typical result from the type of surgical procedure. The Board acknowledges that the Veteran believes that VA delayed his post-operative treatment and this delay caused additional disability in his right hand. Unfortunately, the medical evidence shows that there was no delayed treatment in his condition and that his resulting disability is an unfortunate known risk to his procedure. Additionally, on September 5, 2009, the Veteran was given the opportunity to report if he experienced unusual pain, to which he denied. He was also instructed prior to his follow-up visit to contact his doctor if he experienced continued pain. VA clearly communicated to the Veteran the instances in which he would need to seek additional treatment. Therefore, if the Veteran felt he required additional treatment, he was provided the opportunity to receive such treatment. The Board is truly sympathetic to the Veteran's claim. However, the Board is bound by the governing laws and regulations. Based on the governing laws and regulations, in addition to the facts of his case, entitlement to compensation under 38 C.F.R. §1151 must be denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.