Citation Nr: 21072179 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-36 047 DATE: December 2, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for third digit (finger), left hand amputation is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1976 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an August 2021 Board hearing. A transcript of the hearing is of record. Entitlement to compensation under 38 U.S.C. § 1151 for third digit (finger), left hand amputation The Veteran sought treatment at the VA medical center in Durham, North Carolina in October 2015 after suffering a crushing injury to the middle finger on his left hand. In February 2016 he underwent amputation of the finger at a private medical center due to an infection of the bone. The Veteran contends that the amputation arose from and worsened as a result of negligence and error on the part of VA treatment providers. He contends that he is entitled to compensation under 38 U.S.C. § 1151. In pertinent part, section 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361I(1). Hospital care, medical or surgical treatment, or examination cannot cause the 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. § 3.361I(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361I(3). A VA opinion was obtained in September 2016. A physician reviewed the Veteran's medical records and determined that his left middle finger amputation was definitely not the result of misdiagnosis by the Durham VA in October 2015, and it was less likely than not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or the disability constitutes an event which was not reasonably foreseeable. The doctor explained that the Veteran sustained two injuries to the same finger within four days and only sought treatment following the second injury. The doctor stated that he was correctly diagnosed with a minimally displaced fracture at the dorsal base of the third distal phalanx, that records showed that it was healing well in December, and that X-rays taken from October through December 2015 did not show osteomyelitis due to the mycobacterium avium intracellular complex that was later found by the private surgeon. The VA physician did not comment on the record that suggested that Ancef (an antibiotic) was noted in the October 2015 records but that the Veteran reported it was never administered. The Veteran attended a Board hearing in August 2021. He testified that he believed the infection in his finger than led to the amputation was a result of negligence and error on the part of VA treatment providers. He explained that a nurse at the VA told him it was standard protocol to receive antibiotics, but that the doctor treating him denied the treatment and acted outside of standard procedure. He also testified that during follow-up treatment he overheard medical staff say that his finger should have been "cleaned out." The Veteran testified that while receiving private treatment, "a doctor's physician said that it should have been handled different and that [he] should have gotten antibiotics immediately." The Veteran submitted a private opinion in August 2021. The private doctor stated that he was unable to review the Veteran's medical files, but that based on the Veteran's lay statements, the doctor felt that "earlier, and more aggressive, institution of wound care and debridement as well as a more dedicated antibiotic protocol could have prevented the ultimate amputation." The Board cannot make a fully informed decision on the issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 for left third finger amputation because no VA examiner has fully opined as to whether the Veteran's disability and complications were caused by VA hospital care, medical care or surgical treatment. The September 2016 VA opinion did not address whether the Veteran suffered from additional disability due to complications from treatment by VA or whether his left finger amputation was proximately caused by 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. The examiner did not address the Veteran's contentions that the VA's failure to provide antibiotics and clean out his finger led to the amputation of the left middle finger. Neither the August 2021 private opinion nor the September 2016 VA opinion addressed whether those failures were considered to be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Accordingly, an additional opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran's left middle finger amputation and whether: (a.) the Veteran suffered from additional disability due to complications from treatment by VA in October 2015 through December 2015. (b.) any additional disability including left middle finger amputation was proximately caused by 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. (c.) any additional disability was proximately caused by an event not reasonably foreseeable. Further, was this risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In addition, the examiner is asked to specifically comment on the Veteran's August 2021 Board hearing testimony and the August 2021 private opinion, including as it applies to the issue of administration of antibiotic treatment following the initial assessment in October 2015 and thereafter. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.