Citation Nr: 21022102 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-12 656 DATE: April 14, 2021 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability of the left hand, status post surgery for Dupuytren’s contracture is denied. FINDING OF FACT The objective medical evidence does not show that additional disability was caused by carelessness, negligence, lack of proper skill, or error in judgment by VA, or by an event not reasonably foreseeable during the September 2012 VA surgery for Dupuytren’s contracture. CONCLUSION OF LAW The criteria for an award of 38 U.S.C. § 1151 benefits for status post surgery for Dupuytren’s contracture have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.361, 3.1000 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1977 to August 1980. Compensation Under 38 U.S.C. § 1151 Under VA laws and regulations, when a Veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or qualifying death of a Veteran in the same manner as if that additional disability or death were 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 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. 38 U.S.C. § 1151 (a). Thus, the issue in this case is whether VA care proximately caused the worsening of left-hand Dupuytren’s contracture, and if so, whether there was an unanticipated result of evidence of carelessness or other instance of indicated fault. To determine whether a veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361 (b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in the additional disability. Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care, medical or surgical treatment or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment or examination was furnished unless VA’s failure to diagnose and properly treat in a timely manner the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). Additional disability caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361 (c)(3). As such, the proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). As noted above, a claimant may establish that the qualifying disability was directly caused in either of two ways: 1) by carelessness, etc., or 2) by an event not reasonably foreseeable. 38 U.S.C. § 1151 (a). The Board notes that such disability or death need not be “directly” caused by the “actual” medical care provided by VA personnel; however, section 1151 does not extend to the “remote consequences” of VA medical treatment. See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). To establish that 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 proximately caused a Veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the additional disability or death. 38 C.F.R. § 3.361 (c). It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, representative’s informed consent. 38 C.F.R. § 3.361(d)(1). At issue in this case is whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Id. The Veteran does not assert, nor does the evidence suggest, any allegations of a lack of consent.   Entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the left hand, status post surgery for Dupuytren’s contracture. The Veteran has alleged that a September 11, 2012 operation resulted in additional disability (loss of use of the left hand). Turning to the record, he was seen in 2011 visits to VA following a history of a 2010 finding of progressive contracture of the left hand. This evidenced mostly as contracture of the ring finger, with extreme pain in the left-hand ring and 5th fingers, extending up to the upper arm and shoulder. The Veteran underwent left-hand surgery in in September 2012 to release Dupuytren’s contracture of the left-ring and 5th fingers. A September 2012 VA plastic surgery follow-up note stated the Veteran’s treatment plan, to include “need[ing] hand physical therapy and to do so for over 6 months. He was also advised to discuss with his hand therapist and obtain a joint jack to keep his ring finger extended and try to prevent recurrence. Patient was again told that he needed to do hand therapy for 3-6 months and that unfortunately his ROM [range of motion] on ring finger might be limited, but with therapy he can try to improve his functional outcome.” October through December 2012 VA plastic surgery follow-up notes show range of motion measurements for the Veteran’s left-ring and 5th fingers at the 3 joints (metacarpophalangeal, proximate interphalangeal and distal interphalangeal joints), indicating by December to the treatment provider that range of motion was now “much improved.” The need for hand and finger-joint therapy was emphasized. By January 2013, the Veteran was performing hand therapy at home and at weekly sessions with a VA therapist, but the treatment provider noted the left hand will need “significant therapy” and his finger will require a joint-jack splint. In a February 2013 private treatment note, the Veteran reported continuous severe pain in the left 5th finger, exacerbated by lifting or grasping, he has no sensation in the palmar aspect of the ring finger and he has significantly decreased sensation on the dorsum of the ring finger. The Veteran posed the question, “Is this as good as it is going to get?” On examination, the treatment provider found the Veteran has a degree of hyperpathia and hypersensitivity to light touch along the ulnar border of the hand extending to the metacarpophalangeal joint region of the 5th finger, he had virtually no sensation to light touch either on the volar or dorsal aspect of the ring finger, both “radially and ulnarly.” The treatment provider assessed the Veteran with status post fasciectomy left-ring finger, with significant decrease in sensation in the domain of both the radial and ulnar digital nerves to the ring finger and significant pain with use of the ring and 5th fingers. He further concluded that it was unlikely that any type of stretching therapy, including joint jacks, would result in lasting improvement and also unlikely he will regain full composite flexion of the ring or 5th fingers, but with continued active-assisted range of motion exercises, it may be possible to gain more function flexion. Additionally, the treatment provider observed that the Veteran’s “present extension is probably reasonable. His lack of active flexion is probably less than would be expected and [] his peristent pain, especially along the ulnar border of the hand, is of uncertain etiology at this time. All things considered, it was left that the patient was informed that this result to date would be considered somewhat less than average but probably not totally unsalvageable at this point.” The treatment provider advised the Veteran to continue the desensitization-type maneuvers and he discussed with the Veteran in theoretical terms the possibility that the distal interphalangeal joint could be fused in a more functional position. The treatment provider also discussed with the Veteran that “any operative Procedure with Dupuytren’s disease is unpredictable and that there are certainly situations where operations for Dupuytren’s disease result in a situation that could conceivably be less function than the preoperative condition.” A March 2013 VA plastic surgery outpatient note shows, now 6 months after the Veteran’s Dupuytren’s contracture release operation, he was performing aggressive occupational therapy and “doing well [] [and] has tolerated joint-jack therapy.” On examination, the treatment provider found the left-ring finger with improved contracture at distal interphalangeal, improved flexion of proximate interphalangeal and improved metacarpophalangeal flexion. The 5th finger was able to flex closer to the palm. He assessed the Veteran as doing well status post Dupuytren’s contracture release of left hand and now with therapy. From January through March 2013, the Veteran presented for VA occupational therapy sessions. The March 2013 note states in its assessment that “[a]ll goals met, to maximize functional return [status post] Dupuytren’s [re]leases 9/11/12. Veteran was seen by community surgeon for second op[]i[ni]on as well as veteran’s surgeon who agree, veteran has met maximal functional return. OT [occupational therapy] discontinued at this time, with veteran to continue with home exercise program. [D]iscontinue PIP [proximate interphalangeal] extension splint.” The Veteran submitted with his claim a January 2014 private Disability Benefits Questionnaire (DBQ), in which Dr. T.E noted the Veteran’s reported medical history of undergoing September 2012 surgery for left-hand fasciectomy and now experiences residual contracture. Dr. T.E diagnosed the Veteran with left-side “ICD Code 728.6” (contracture of palmar fascia under the International Statistical Classification of Diseases and Related Health Problems (IDC)). Range of motion measurements show left-ring and 5th fingers exhibited limitation of motion or evidence of painful motion; a gap between the finger tips and the proximal transverse crease of the palm or evidence of painful motion in attempting to touch the palm with the finger tips; and painful motion beginning at a gap of 1 inch (2 cm) or more. Dr. T.E further found the contributing factor to functional loss or additional limitation or range of motion of any of the fingers to be left-sided pain on movement. He also found left-sided tenderness or pain to palpation for joints or soft tissue. Muscle strength testing revealed the Veteran’s left grip was at 1/5 (palpable or visible muscle contraction but no joint movement). As a related complication of the Veteran’s left-hand disorder, Dr. T.E found “markedly decreased sensation[,] [left-]ring finger. He found the Veteran’s left-hand disorder impacts his ability to work, “contractions of [left-]ring & small fingers interfere [with] photography.” In May 2018, the Veteran underwent a VA examination for hand and finger conditions, in which the VA examiner diagnosed left-sided Dupuytren’s contracture and noted the Veteran’s reports of no sensation in the entire left-palmar surface, “[a]ll the nerves are gone” as a result of the surgery, he reported has received no therapy for his hand (however, the VA examiner noted that the Veteran’s medical records “indicate in contrast that he received intensive therapy for his hand post-op”), and he can only feel extreme temperatures with his left hand. He noted the Veteran is right-hand dominant. Range of motion measurements for the 3 joints of the fingers on both hands were identical, except for the left-hand ring finger which showed extension at 15 degrees at the distal interphalangeal joint (all other finger extensions were at 0 degrees). The May 2018 VA examiner performed further tests, showing no differences between right and left hands. The May 2018 VA examiner also conducted a VA examination for peripheral nerves conditions. He diagnosed digital neuropathy, noting the Veteran’s reports of being unable to feel much with the left palm. He found left-upper extremity numbness as a symptom attributable to peripheral nerves conditions. Muscle strength and reflexes were normal, but he found decreased sensory responses in the left-hand and fingers and left mild incomplete paralysis of the ulnar nerve. He concluded the Veteran would have difficulty performing tasks requiring full sensation in the hand, as he has some sensory loss in the left 4th digit. Concerning the claim for section 1151 compensation, the May 2018 VA examiner opined that left hand, status post Dupuytren’s contracture release was less likely than not (less than 50 percent probability) caused by or became worse as a result of the September 2012 VA surgery. He explained in his rationale, first, that he is a board-certified physician and added that, at this time, there is no evidence in the record suggesting that complications or unexpected events occurred during the Veteran’s surgery. He added that he Veteran underwent appropriate post-operative therapy for his hand to maximize range of motion and strength and the records indicate the Veteran was unhappy with the result of the surgery. in that his range of motion has not returned completely to normal. The May 2018 VA examiner observed, “However, this result is well within the possible outcomes for this procedure and the patient was made aware of this as part of the pre-operative consent process. He does have some sensory loss of the left 4th digit, and this is likely related to the procedure. It is also not unexpected however and commonly occurs as a result of similar procedures.” He added, “In my opinion, left hand, status post Du[puy]tren’s contracture release was NOT caused by or became worse as a result of the VA treatment at issue (surgery on 9/11/12 at West Haven), additional disability DID NOT RESULT from the attending VA personnel’s failure to follow the appropriate standard of care, additional disability DID NOT RESULT RELATED TO an event that could not have reasonably been foreseen by a reasonable healthcare provider, [and] THERE WAS NO failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability [which] allowed the disease or disability to continue to progress.” Based on the medical evidence of record, there is no discernible error made by VA in any of the procedures pertaining to the September 2012 VA surgery, nor has the Veteran identified a specific instance of clinical error or a questionable surgical procedure. Although, in his January 2014 examination, Dr. T.E found remaining limitation of motion of the Veteran’s left hand and left-ring and 5th fingers, these various findings do not give indication of surgical treatment exhibiting carelessness, negligence, lack of proper skill, or error in judgment. The May 2018 VA examiner in the rationale for his opinion tracked the relevant segments of the record of the surgery and post-operative therapy and he accordingly rendered a series of opinions as to whether VA’s procedures or the conclusions made from them by its medical professionals were sufficient and correct. Additionally, Dr. T.E did not address whether his findings are the result from an event not reasonably foreseeable, whereas the May 2018 VA examiner noted that the less-than-complete return to normal left-hand range of motion and function is “within the possible outcomes for this procedure” and the Veteran “was made aware of this as part of the pre-operative consent process.” Indeed, the Veteran’s own private treatment provider in February 2013 discussed at length the nature of the surgical procedure, noting “any operative procedure with Dupuytren’s disease is unpredictable and that there are certainly situations where operations for Dupuytren’s disease result in a situation that could conceivably be less function than the preoperative condition.” Moreover, approximately a month later in March 2013, the Veteran’s VA occupational therapist stated in her progress note that all goals had been met for a return to maximum function, adding that “Veteran was seen by [a] community surgeon for second op[]i[ni]on as well as veteran’s surgeon who agree, veteran has met maximal functional return.” The Board has carefully considered the Veteran’s July 2015 Statement in Support of Claim and the statement accompanying his February 2016 Veterans Appeals Form 9, as well as his reports to treatment providers, as they appear throughout the record. The Board is well aware lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Veteran’s lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran asserts that, as a result of the left-hand surgery, his hand “was destroyed costing me my job” and being unable to work since March 2013. He further asserts that before the surgery, he had feeling and strength in the left hand, but afterward there is “no feeling and virtually no strength…. My left hand, while looking normal, is less functional since the surgery… I have yet to be evaluated by a VA doctor.” As stated above, the May 2018 VA examiner has performed such an evaluation and addressed the questions at issue in this appeal. Once again, his findings do not indicate, and the Veteran has not asserted with any specificity, that the September 2012 surgery was insufficient in care and skill or its procedures were incorrect in any way. Therefore, the Board assigns more probative value to the May 2018 examinations for hand/finger and for peripheral nerves conditions, as they were conducted by a medical professional after in-person examination and testing of the Veteran. The May 2018 VA examiner thoroughly reviewed of the Veteran’s medical history and his opinions, for the reasons stated above, exhibit sound clinical conclusions regarding the issues of this appeal. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). Nothing in the record establishes that during VA hospital care, medical or surgical treatment or examination treatment providers exhibited carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, nor did additional disability result from an event not reasonably foreseeable. Accordingly, the preponderance of the evidence of record is against a finding of entitlement to compensation under 38 U.S.C. § 1151. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.