Citation Nr: 21074479 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-23 766 DATE: December 15, 2021 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for right shoulder/arm condition is denied. FINDINGS OF FACT 1. The Veteran underwent a reverse shoulder arthroplasty for his right shoulder in January 2016 at a private facility. The initial treatment was at a VA facility, but the surgical procedure was outsourced to a private facility. This surgery caused additional disability concerning the Veteran's right shoulder/arm. 2. The competent and probative evidence shows that nerve complications are a known risk of reverse shoulder arthroplasty. 3. The evidence also tends to show that the Veteran had decision-making capacity and was informed of the overall risks and benefits of reverse shoulder arthroplasty. 4. The preponderance of the evidence is against a finding that the additional disability of the Veteran's right shoulder/arm is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the health care providers who provided treatment, or that there was an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for right shoulder/arm condition are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1956 to April 1959 and from April 1959 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision. In September 2020, the Veteran testified before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. This case was last before the Board in July 2021, at which time the Board remanded the matter for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). *** Under 38 U.S.C. § 1151, compensation shall 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 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, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and 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 determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361 (b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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 a Veteran's additional disability, it must be shown that the medical treatment caused the Veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d) & (d)(1). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). 38 C.F.R. § 3.361(d)(1)(ii). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim 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 the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2). *** The evidence establishes that the Veteran has nerve damage status post reverse total shoulder arthroplasty and this condition was caused by the surgical procedure. Specifically, the record indicates that a VA facility had provided treatment by outsourcing a reverse shoulder arthroplasty procedure. This treatment resulted in additional disability of the Veteran's right shoulder/arm. Per a March 2019 statement from Dr. McCarron, the Veteran, after the 2016 procedure, developed painful paresthesias of the right upper extremity and weakness in the deltoid and triceps. The question becomes whether the proximate cause of the disability 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. A March 2019 medical opinion from Dr. McCarron indicated that he had known the Veteran from his previous employment at the Portland VA Medical Center, where he was the Orthopedic Section Chief from 2010 to 2016, and more recently as a private clinician. The Veteran was noted to have a history of bilateral rotator cuff arthropathy, for which he was outsource for treatment from the VA, eventually undergoing right shoulder reverse shoulder arthroplasty at the Vancouver Clinic in early 2016. Immediately following the surgical procedure, the Veteran developed painful paresthesias involving the right upper extremity as well as weakness in the deltoid and triceps. Subsequent nerve studies revealed incomplete right brachial plexopathy involving the axillary and radial nerves. Dr. McCarron opined that the Veteran's claimed condition was sustained at the time of his 2016 surgery. Dr. McCarron also noted that brachial plexus and nerve traction injuries are a rare but known complication that has been reported with reverse shoulder arthroplasty. 05/11/2021, Medical Treatment Record Non-Government Facility. A July 2021 Board decision noted that the March 2019 private medical opinion is unclear as to whether this rare but known complication of reverse shoulder arthroplasty was reasonably foreseeable. Specifically, whether a reasonable health care provider would not have considered the Veteran's right shoulder/arm condition to be an ordinary risk of the treatment provided. The Board remanded the claim of entitlement to compensation under 38 U.S.C. § 1151 for right shoulder/arm condition and directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum opinion to determine whether the risk associated with the Veteran's right brachial plexopathy involving the axillary and radial nerves, as a complication of complication of reverse shoulder arthroplasty, was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. 07/15/2021, BVA Decision. The treatment records indicate that the risks and benefits of the right shoulder reverse total shoulder arthroplasty were discussed with the Veteran, as well as alternatives to surgery. Whether the risk of nerve damage was discussed is not specifically annotated in the records. 07/25/2016, Medical Treatment Record Non-Government Facility, at 11-12. In a September 2021 VA medical opinion, the clinician, a staff physician, opined that nerve complications are a well-known occurrence of reverse total shoulder arthroplasty procedures. Specifically, the most common complications of reverse total shoulder arthroplasty include neurological injury, periprosthetic fracture, hematoma, infection, scapular notching, dislocation, mechanical baseline failure, and acromial fracture. Incidents of nerve complications is between 19 percent and 68 percent, but the safety and reliability of reverse joint arthroplasty has markedly improved since the initial use of these procedures. The clinician reviewed the above-reference treatment records documenting the January 2021 surgical procedure, which stated that the risks and benefits of reverse total shoulder arthroplasty were discussed with the patient, as well as alternatives to surgery. The treatment records also indicated that the Veteran was seen in the pre-operation area and signed a consent form, and that the risks and benefits were reviewed. The clinician opined that this is acceptable documentation of obtaining consent and meets established standards of providing information regarding known complications, which includes nerve injuries in this case. The clinician reviewed this case with the Chief of Orthopedics at the Portland VA medical center and also provided citations to the several medical treatises and studies that were considered in providing the opinion. 09/17/2021, C&P Exam. Upon consideration of the record, the Board finds that the Veteran was sufficiently informed of the risk of nerve complications as a known occurrence of reverse total shoulder arthroplasty. Specifically, the Board places probative value and weight on the September 2021 VA medical opinion, which noted that the documentation in the record regarding informed consent meets established standards of providing information regarding known complications. Patients receiving health care from VA have the right to accept or refuse any medical treatment or procedure recommended to them. Except as otherwise provided in this section, no medical treatment or procedure may be performed without the prior, voluntary informed consent of the patient. (1) In order to give informed consent, the patient must have decision-making capacity. (2) In the event that the patient lacks decision-making capacity, the requirements of this section are applicable to consent for treatments or procedures obtained from a surrogate acting on behalf of the patient. 38 C.F.R. § 17.32(b). At the time of the 2016 surgical procedure, the record tends to show that the Veteran had decision-making capacity. Moreover, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current right shoulder/arm condition is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the health care providers who provided treatment, or that there is any additional disability resulting from that treatment constituting an event that was not reasonably foreseeable. Again, the Board places probative value and weight the March 2019 medical opinion, which indicated that brachial plexus and nerve traction injuries are a rare but known complication that has been reported with reverse shoulder arthroplasty. And, the September 2021 VA medical opinion also has probative value and weight because it considered several studies on the known risks of reverse total shoulder arthroplasty, which include nerve complications, and opined that it is a type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures. Additionally, this literature tended to show that nerve complications are a well-known occurrence and anticipated occurrence in reverse shoulder arthroplasties. It was elaborated that this means that they are an occurrence that is not always avoidable and can occur despite lack of any wrongdoing or negligence or not meeting of standard of care on part of surgeon or care team. The Board finds such evidence to be probative of this matter and it tends to show that it was a foreseeable event with the reverse total shoulder arthroplasty procedure that the Veteran had in 2016. As such the preponderance of the competent and probative evidence is against a finding that the Veteran's right shoulder/arm condition was proximately caused by VA carelessness or negligence. Furthermore, the Veteran's right shoulder/arm condition was reasonably foreseeable. In sum, the preponderance of the evidence is against the Veteran's claim for benefits under 38 U.S.C. § 1151. Accordingly, the benefit of the doubt doctrine is inapplicable, and the appeal is denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.