Citation Nr: 21014248 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-17 716 DATE: March 11, 2021 REMANDED The claim of entitlement to compensation under 38 U.S.C. § 1151 for right hand disability due to surgeries conducted at a VA Medical Center is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1986 to August 1988. His claim comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of this claim during a hearing held at the Agency of Original Jurisdiction (AOJ) before the undersigned Veterans Law Judge in June 2019. Entitlement to compensation under 38 U.S.C. § 1151 for right hand disability due to surgeries conducted at a VA Medical Center The Veteran alleges that he has additional disability as a result of two surgeries he underwent in March and June 2014 at a VA Medical Center 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 claims that, due to the loss of use of his right thumb, the Social Security Administration (SSA) has found him 100 percent disabled. Additional development is needed before the Board decides this claim. First, during his hearing, the Veteran identified outstanding records of treatment at VA Medical Centers in St. Cloud and Bemidji, Minnesota, and Fargo, North Dakota, and Northern Orthopedics in Brainerd, which need to be obtained. He also mentioned that he was in receipt of SSA disability benefits based on his right thumb disability, but the records upon which SSA relied in awarding the Veteran such benefits are not in the claims file and too need to be obtained. Second, the Veteran requested VA to remand this case for an independent medical opinion by a board-certified medical professional such as an orthopedic surgeon to review the surgeries for any incompetence, malpractice, lack of knowledge, improper care, or poor decision making. The Veteran underwent the first surgery in March 2014 (arthrodesis with Synthes bone plate and screws) to ease the 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. Prior to this surgery, he signed a consent form that did not specifically mention any thumb complications that might result but from the surgery but noted, in part, surgery failure, a need to revise the surgery at a later date, and less than complete recovery of normal functions or pain relief as known risks. 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 October 2015, a VA examiner found that the Veteran had no increased disability as a result of VA’s treatment, and his symptoms were not related to the treatment. This opinion is inadequate as it does not address the significance of the thumb symptoms, which initially manifested after the first surgery, or explain why they do not represent additional disability or residual symptoms of the surgeries. Another more comprehensive opinion is therefore needed, which addresses the Veteran’s contentions, is based on expertise and is unbiased. This matter is REMANDED for the following action: 1. Secure and associate with the Veteran’s file records of his hand treatment at VA Medical Centers in St. Cloud and Bemidji, Minnesota, and Fargo, North Dakota, and Northern Orthopedics in Brainerd. 2. Secure and associate with the Veteran’s file the records upon which SSA relied in awarding him disability benefits based on the loss of use of his right thumb. 3. Obtain an advisory medical opinion from an independent medical expert (IME), one trained in orthopedic surgery, addressing the complications that resulted from the Veteran's March 2014 right wrist surgery and June 2014 right thumb surgery. (Continued on the next page)   Based on a review of the record, including the Veteran’s hearing testimony (summarized above), treatment records dated since 2012, and the October 2015 VA examination report, the expert should answer whether (a) the Veteran has additional disability as a result of his March 2014 and/or June 2014 right wrist and thumb surgeries; and if so, (b) whether it results from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, or an event not reasonably foreseeable. The expert should provide complete rationale for the opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.