Citation Nr: 21008470 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-37 380 DATE: February 17, 2021 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for left wrist status post-surgery, to include malalignment and left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm, is denied. FINDING OF FACT The Veteran’s left wrist surgery was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. CONCLUSION OF LAW The criteria for compensation benefits pursuant to 38 U.S.C. § 1151 for left wrist malalignment have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to August 1985, and from March 1986 to November 1990. In October 2018, the Veteran provided testimony at a Board of Veterans’ Appeals (Board) video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In March 2019, the Board issued a decision that denied the Veteran’s claim. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) vacating the claim back to the Board. In September 2020, the Board remanded the claim back to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board requested the AOJ to obtain all outstanding VA treatment records, including the January 1993 VA medical treatment records related to the Veteran’s left wrist surgery. The Board notes that the AOJ attempted in February 2015, January 2017, and September 2020 to obtain the outstanding VA records related to the 1993 wrist surgery. Additionally, a May 2015 VA examiner noted that there was “very limited information,” even after pulling the hard file from the basement of the Minneapolis VA Medical Center. The Minneapolis VA Medical Center responded to the AOJ’s request in October 2020. Unfortunately, the only records located were already within the Veteran’s claims file. The Board finds that the AOJ has complied with the Board’s remand directives and will now evaluate the claim on its merits. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for left wrist malalignment The Veteran believes that due to the misalignment of the radius and ulna from a January 1993 VA surgery, he is unable to have his left wrist function properly. The Veteran stated in his March 2017 VA Form 9, Appeal to the Board, that he has never been able to fully use his left wrist since the Minneapolis VA surgically installed the plate and screws into his left wrist and failed to align the left radius and ulna. Additionally, the Veteran stated that the arthritis in his left wrist developed due to the misalignment. During his October 2018 Board hearing, the Veteran alleged that there was negligence in not properly aligning the bones with the plate. Due to this misalignment, the Veteran stated that he had loss of strength, numbness, pain, and arthritis in his left wrist. Under the applicable criteria, compensation under 38 U.S.C. § 1151 shall be awarded for a veteran’s qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished him or her under any law administered by VA, and 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. To determine whether an additional disability was caused by medical treatment, VA compares a veteran’s condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care, treatment, or examination, and that a veteran has an additional disability does not establish cause. A disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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. § 3.361(b), (c). The Board finds that the preponderance of the evidence is against a finding that the Veteran sustained an additional disability, to include malalignment and left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm, as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or that there is any additional disability resulting from VA treatment constituting an event that was not reasonably foreseeable. The reasons follow. The Veteran states he received treatment at the Minneapolis VAMC on January 5, 1993. Although the original January 1993 surgical record could not be located, VA treatment records show follow-up evaluations for the Veteran’s left forearm, noting a fracture that was healing without change in position or alignment. For instance, a February 1993 VA medical treatment record shows that there has been no migration of the fracture fragments from the last examination of January 5, 1993. Additionally, a March 1993 VA medical treatment record shows that the Veteran’s fracture was less lucent and consistent with healing. The examiner also stated that there were no changes in position or alignment. A December 2014 private medical record shows left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm and left tennis elbow. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that he developed an additional disability following VA treatment in January 1993. 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102. The Veteran submitted a December 2014 private medical record from Dr. Dana Harms. Dr. Harms wrote that the Veteran sustained a mid-shaft radius fracture and developed distal radial ulnar joint arthritis, secondary to severe ulnar minus (6 mm). Dr. Harms said this is related to a mismatch between the distal end of the radius and ulna. The Board finds this opinion is not sufficient to establish that the Veteran’s additional disability is as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Specifically, it does not include a rationale for the conclusion made. A medical opinion without a rationale has no probative value. In a May 2015 VA examination report, the examiner opined that it was less likely than not that the Veteran’s additional disability was caused by the Veteran’s January 1993 surgery on his left forearm. The examiner concluded that it is most likely that the distal radial osteoarthritis is related to the radial fracture injury itself from 1993. The examiner also stated that the 6 mm deviation noted by private medical examiners in August and December 2014 is most likely related to the injury itself. The examiner concluded that he could find no evidence of any fault or carelessness done by surgical procedure involving the left wrist forearm on January 5, 1993 by the Minneapolis VA Hospital. The examiner stated that the 6 mm deviation noted in 2014, specifically, the left distal radial osteoarthritis, is posttraumatic in nature and is related to the original injury itself status and is not related to the surgical procedure performed in January 1993. This opinion establishes that the Veteran’s current left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm is not related to the January 1993 VA treatment for the Veteran’s left forearm. In a February 2017 VA opinion, the examiner opined that the Veteran’s current left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm was not directly related to error in January 1993. The examiner explained that while the original January 1993 treatment record was not available, follow-up VA and private treatment records in 1993 supported that the Veteran’s left forearm was healing normally. The examiner stated that it was his opinion that the resultant arthritis in the wrist over 25 years later was not directly related to an error in treatment from the 1993 surgery. This opinion additionally establishes that the Veteran’s current left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm is not related to the January 1993 VA treatment for the Veteran’s left forearm. In a November 2020 VA opinion, the examiner stated that the Veteran’s current left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm is less likely than not due to the January 5, 1993 left wrist surgery. The examiner stated that the Veteran’s diagnosed traumatic arthritis is the plausible cause of current left wrist condition. The examiner stated that the x-rays taken in February and March 1993 did not confirm a misalignment of the distal end of the radius and ulna. Therefore, the examiner concluded that it is less likely than not that the claimed additional disability was due to the January 5, 1993 left wrist surgery and the surgery was performed exercising the degree of skill and care ordinarily required of the medical profession. The Board affords great probative weight to the May 2015, February 2017, and November 2020 VA examiners’ opinions, which were rendered following a thorough review of the Veteran’s claims file and the Veteran’s medical history, and each examiner provided a rationale for the conclusion reached, which was based on the facts and medical principles. Notably, the three VA examiners all concluded that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care. The fact that they all agreed bolsters the opinions. These opinions are evidence against the claim. To the extent that the Veteran asserts his current additional disability of left wrist is related to his January 1993 VA surgery and treatment, the Board finds that such a determination involves complex medical findings well beyond the lay competence of the Veteran. As such, his conclusory lay statements in this regard is of no probative value. Furthermore, the Board finds that the Veteran’s opinion is outweighed by that of the May 2015, February 2017, and November 2020 VA examiners, who provided the opinion that the Veteran’s current disability is the natural outcome of the original injury and is not related to the treatment for that injury. The Board notes that there is no competent and probative evidence establishing positive medical opinion to weigh against the three VA medical opinions. In summary, the preponderance of the evidence is against a finding that the left wrist status post-surgery with misplacement malalignment was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers, who provided treatment or was an event that was not reasonably foreseeable. For these reasons, the Board finds that the preponderance of the evidence is against the claim for additional disability of left wrist status post-surgery, to include malalignment and left wrist osteoarthritis distal radius ulnar joint with ulnar minus 6 mm due to treatment by VA under 38 U.S.C. § 1151, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.