Citation Nr: 21011572 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-14 541 DATE: March 2, 2021 ORDER Compensation benefits under 38 U.S.C. § 1151 for residuals of right thumb surgery in November 2008 is denied. FINDING OF FACT The evidence of record does not demonstrate that the medical professionals involved in the Veteran’s right thumb surgical procedure in November 2008 failed to exercise the degree of care that one would expect from a reasonable health care provider or that the Veteran has developed an additional disability that was not a reasonably foreseeable result of the medical procedure. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for additional right thumb disability are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to July 1981, March 2002 to August 2002, and October 2003 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in December 2016, December 2017, and September 2020, at which times it was remanded for further development. In January 2017, the Veteran testified before the undersigned at a Travel Board hearing in Detroit, Michigan. A transcript of that hearing has been associated with the virtual file and reviewed. Entitlement to compensation benefits under 38 U.S.C. § 1151 for residuals of right thumb surgery in November 2008 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). 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). At his hearing in January 2017, the Veteran testified that he injured his right thumb while undergoing residential mental health treatment at a VA Medical Center (VAMC). He received stitches and this thumb was put in a splint. He indicated that after his surgery in November 2008, his thumb never properly healed and he did not regain mobility. He continued to have problems with it after the second surgery in July 2010 with chronic pain, arthritis, and mobility issues. He also testified that he received regular treatment between November 2008 and May 2010, including physical therapy for his hand and thumb. He asserted that the VA failed to timely address the symptoms after the first surgery in November 2008 and action should have been taken before the July 2010 surgery to excise infected tissue from the right thumb. In February 2012, a VA examiner stated that he was unable to provide an opinion as to whether a current right thumb disorder is due to treatment at a VA facility without resorting to mere speculation, noting that he was not provided records subsequent to August 2010, and the record as provided did not show a current disorder. An October 2019 VA examiner documented the Veteran to have arthritis and decreased range of motion for the right thumb, but did not provide an opinion regarding the Veteran’s claim. A March 2020 VA clinician opined that it was less likely than not that a right thumb disability was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. It was noted that his November 2008 right thumb repair was later found to have extensor involved and surgical repair of the tendon was completed in July 2010. The wound was complicated by a wound infection which resolved with treatment. The clinician explained that surgical site infections are defined as infections that occur thirty days after surgery with no implant, or within one year in an implant is placed and infection appears to be related to surgery. After review, the clinician determined that the VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met. The Board remanded in September 2020 to supplement the record and VA provided the Veteran another VA examination in November 2020. The examiner opined that it is less likely than not that he developed an additional disability of the right thumb that was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination. It was noted that in November 2008, the Veteran was observed to not be following post-surgical instruction as he was not wearing splint which was important in the period of healing process. Medical records from 2008 documented that he was repeatedly advised to wear the splint and he understood that failure to do so could lead to impairment. In June 2010, he was diagnosed with a thumb cyst that was likely from non-absorbable suture which is a common reaction as the suture acts as a foreign body and he later developed an infection. Regarding this cyst and infection and the delay between the November 2008 and July 2010, the 2020 examiner noted that the infection developed after an extended period of time and if was from the November 2008 procedure, the infection would have set in immediately and would not have taken two years to develop. The examiner also indicated that an infection is a common complication of any type of surgery and it is the body’s reaction that involves several factors and is beyond the control of the provider. The Board considers the findings contained in the November 2020 VA medical opinion to be of great probative value in assessing this matter on appeal. The VA physician provided a logical rationale for the stated opinions based on an extensive and detailed review of the evidence of record. In this regard, medical doctor showed awareness of relevant facts, to include by citing treatment records from the Battle Creek VAMC in November and December 2008 and in June 2010. Thereafter, the examiner explained their opinion regarding proximate cause of the Veteran’s claimed additional disability, supporting those opinions by utilizing medical knowledge and with consideration of the lay assertions of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301-05 (2008) (stating that the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and there is sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Upon consideration of all of the evidence of record, the Board has determined that entitlement to compensation benefits under 38 U.S.C. § 1151 for right thumb disability as a result of VA medical treatment, including the November 2008 surgery, is not warranted. The Board acknowledges the Veteran’s contention that entitlement to compensation is warranted due to the additional disability caused by the surgical treatments. However, in this case, the Board finds that a lay person is not competent to determine whether his right thumb surgery and the subsequent infection were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, due to the complexity of the thumb procedure and the medical knowledge of causes of infections. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). This information is highly specialized and beyond the competency of a lay person. As such, the Veteran’s statements in this regard are not competent and lack weight. Additionally, the Veteran has not submitted any competent medical evidence indicating that the proximate cause of the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or that it was due to an event not reasonably foreseeable. 38 U.S.C. § 5107(a). Consequently, for the reasons stated above, the Board assigns more weight to the probative, competent VA medical examinations and opinions. Accordingly, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). Although the Veteran experienced additional disability following the procedures, the evidence is against a finding that the additional disability was due to negligence, lack of proper skill, error in judgment or an event not reasonably foreseeable, and the claim is denied. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.