Citation Nr: 21073158 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-17 716 DATE: December 7, 2021 REMANDED The claim of entitlement to compensation under 38 U.S.C. § 1151 for a right hand disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1986 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board previously remanded this case in March 2021 for additional development. Unfortunately, as explained below, the Board is not satisfied that there was substantial compliance with its most recent remand. Therefore, the appeal must be remanded once again. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 1. The claim of entitlement to compensation under 38 U.S.C. § 1151 for a right hand disability is remanded. The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for an additional right hand disability as a result of two surgeries he underwent in March 2014 and June 2014 at a VA Medical Center (VAMC) in St. Cloud, Minnesota. He testified that although he had problems with his right wrist prior to the first surgery, due to surgical error he developed thumb issues (ruptured right thumb extensor longus tendon), which necessitated a second surgery; since then, his problems have worsened. He also testified that he was never informed prior to either surgery that his thumb would be impacted. He has stated that the condition causes him to have chronic pain, difficulty walking and trouble performing daily tasks. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death 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 if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by VA, and (3) 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. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Whether the proximate cause of a claimant's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. 38 C.F.R. §§ 3.361(d)(2), 17.32. VA treatment records show that the Veteran underwent surgery in March 2014 (arthrodesis with Synthesbone plate and screws) to ease pain and swelling he had in his right wrist. At the time, x-rays showed advanced degenerative arthritis of that joint, and the Veteran expressed no thumb-related complaints. Thereafter, the Veteran began to notice that he was unable to extend and abduct his right thumb, which a doctor thought might be due to entrapment of the thumb extensor tendon or some other issue with that tendon, requiring a second surgery. Prior to this surgery, he signed a consent form that specifically mentioned less than complete recovery function, including an inability to bend or straighten the finger, as a known complication of the surgery. In June 2014, the Veteran underwent the second surgery (repair and release of the extensor tendon of the right thumb), and since then, private doctors have characterized the surgeries as failed and noted that the Veteran has lost the use of his right thumb. In accordance with the March 2021 remand, an opinion from an independent medical expert was obtained in September 2021 pursuant to 38 U.S.C. § 5109 regarding the Veteran's claimed right wrist disorder. The examiner noted that the Veteran underwent a right wrist arthrodesis procedure in March 2014 that resulted in entrapment of the right thumb common extensor tendon in scar tissue that caused the Veteran to lose the ability to extend the thumb. She further noted that the Veteran then underwent a tendon transfer surgery in June 2014 to try to help the Veteran gain thumb extension, but this procedure failed, and the Veteran continued to have limited function of the right thumb. She stated that over time, because of chronic biomechanical changes caused by his limited thumb function, he has developed ankylosis of the 1st metacarpophalangeal (MCP) joint and he has developed diffuse right hand degenerative arthritis. She observed that the Veteran's symptoms have progressed to the point that the Veteran is unable to use the right hand. The independent medical examiner determined that the Veteran's additional disability did not result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel nor due to the failure on the part of VA to timely diagnose and/or properly treat the claimed disability thereby allowing the disability to continue to progress. However, on the question of whether the additional right wrist disability was reasonably foreseeable, the examiner stated that "the complication the Veteran experienced was within the realm of complications typically seen with wrist arthrodesis, but there is no evidence that the surgeons could have foreseen the specific complications in this particular case." The Board finds the VA opinion of record to be inadequate for adjudication purposes. The independent medical expert indicated that "every medical procedure has the potential for complications" and "the complication the veteran experienced was within the realm of complications typically seen with wrist arthrodesis" but also indicated that his additional right hand disability is an "unforeseen event." The Board finds an additional VA opinion is necessary to clarify this conflicting opinion. Furthermore, the Veteran's VA treatment records pertaining to his two right hand surgeries mention that the Veteran signed consent forms prior to undergoing each procedure and VA examiners have referred to the contents of these consent forms. However, the full consent forms the Veteran signed prior to his two right hand surgeries are located on Vista Imaging and have not been associated with the claims file. Therefore, on remand, the AOJ must attempt to obtain the full consent forms signed by the Veteran prior to each of his right hand surgeries in March 2014 and June 2014 located on Vista Imaging to determine if the Veteran's right hand condition was an unforeseeable event. 38 C.F.R. § 3.159(c)(2). Accordingly, the matter is REMANDED for the following action: 1. Obtain and associate with the record a copy of the full consent forms signed by the Veteran prior to his March 2014 and June 2014 right hand surgeries performed by the orthopedics clinic at the VA Medical Center in St. Cloud, Minnesota, which are noted to be located on Vista Imaging. 2. Return the claims file to the September 2021 independent medical expert or other appropriate independent medical expert trained in orthopedic surgery for an addendum opinion addressing the complications that resulted from the Veteran's March 2014 right wrist surgery and June 2014 right thumb surgery. If the questions cannot be answered without a physical examination, then one should be conducted. The examiner is asked to address whether any identified additional right hand disability was an event that was not reasonably foreseeable. That is, if the event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. In providing this opinion, the medical expert is requested to provided comment on the September 2021 medical opinion as discussed above that upon response to the question of whether the additional right wrist disability was reasonably foreseeable, the September 2021 examiner stated that "the complication the Veteran experienced was within the realm of complications typically seen with wrist arthrodesis, but there is no evidence that the surgeons could have foreseen the specific complications in this particular case." If comment/explanation cannot be provided, it should be stated as to why not. If the reviewing clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.