Citation Nr: 21028440
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 15-23 101
DATE: May 11, 2021

ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for the January 2014 surgical removal of Dupuytren's contracted fascia of the long, ring, and little fingers of the left hand is denied.

FINDING OF FACT

The preponderance of the evidence demonstrates that any increase in disability or additional disability following the January 2014 surgical removal of Dupuytren's contracted fascia of the long, ring, and little fingers of the left hand that was not proximately due to VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable.

CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C. § 1151 for the residuals associated with the January 2014 surgical removal of Dupuytren's contracted fascia of the long, ring, and little fingers of the left hand are not met. 38 U.S.C. §§ 1151, 5107 (2018); 38 C.F.R. §§ 3.102, 3.361 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1966 to June 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2014 by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board remanded the issues on appeal for additional development in May 2019. The requested records were obtained in January 2020 and June 2020, and the requested opinion was obtained in November 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

In October 2018, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In February 2021, the Veteran was informed that the VLJ who held the October 2018 hearing was no longer employed by the Board, and he was given an opportunity to appear at another hearing. 38 C.F.R. § 20.604 (2020). The letter informed the Veteran that, if no response was received in 30 days, the Board would assume he did not want another hearing. The Veteran has not responded to the letter; therefore, no further action concerning a Board hearing in necessary.

Compensation Under 38 U.S.C. § 1151

The Veteran contends that VA improperly performed a removal of Dupuytren's contracted fascia from the long, ring, and little fingers of the left hand in January 2014. Specifically, he claims that, following the surgery, he was unable to grasp objects, that his hand and pinky finger was constantly numb, and that he had pain most of the time. See May 2014 VA Form 21-4138, Statement in Support of Claim. In his August 2014 notice of disagreement, the Veteran argued that he was not properly informed of the risks associated with the surgery, and that his disability was much worse than it was before. See August 2014 VA Form 21-0958, Notice of Disagreement.

Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility and the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361.

In Viegas v. Shinseki, the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the Veteran" by VA or in a VA facility. Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151(a)(1)(A), (a)(1)(B). Thus, section 1151 contains two causation elements-a veteran's disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. 

In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after care or treatment is rendered. 38 C.F.R. § 3.361(b). 

To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). 

Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished 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(c)(2). 

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care or medical or surgical 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 or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). 

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. 38 C.F.R. § 3.361(d)(2). 

The Board must weigh any competent lay evidence and to make a credibility determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Pertinent evidence of record includes the Veteran's VA treatment records, a June 2014 VA medical opinion, a September 2014 letter from a private treatment provider, a November 2020 VA medical opinion. 

A November 2013 VA orthopedic surgery consultation noted the Veteran's long history of Dupuytren's of both hands, including a left-handed flexion contracture of the little finger. The VA treatment provider noted that he wanted to have surgery, and that the risks were explained, including infection, surgical failure, poor result, the possible need for reoperation, neurovascular damage, flap necrosis, and stiffness.

A January 2014 VA treatment record noted that the Veteran underwent surgical removal of Dupuytren's contracted fascia of the long, ring, and little fingers of the left hand. In connection with the surgery, he signed a "Consent for Clinical Treatment/Procedure" which explained the following known risks and side effects of the proposed surgery: infection that may require antibiotics and/or further surgery; nerve of blood vessel injury with possible excessive bleeding; temporary or permanent numbness/weakness of the extremity; unsightly or painful scar; unexpected change in procedure at time of surgery; less than complete recovery of normal functional or pain relief; and recurrence of the scar tissue and contracture (loss of motion due to scar tissue).

A subsequent January 2014 VA treatment record noted that the Veteran was provided a splint to the place the third through fifth digits into the available passive extension, and another treatment record noted the Veteran's report of some pain which he attributed to a splint. A later January 2014 treatment record noted the Veteran's report of swelling and pain, and he stated that he did not want to wear the provided splint as he believed it was the splint that caused his pain. The treatment provider noted that it was discussed at length that the splint was needed so that the little finger did not start to come down again.

A February 2014 VA treatment record noted the Veteran's report that he was not wearing the provided splint for twelve hours a day against his therapist's advice.

An April 2014 VA treatment record noted that the Veteran had developed scar contracture on the left hand that was about as bad as the Dupuytren's contracture for which the surgery was performed. It was noted that the Veteran had tightness from the metacarpal head to the distal interphalangeal joint. 

Another April 2014 VA treatment record noted that physical examination revealed no evidence of residual Dupuytren's contracture, but that there was a 90-degree flexion contracture of the left little finger that was probably secondary to the linear contraction of the scar.

In connection with his claim, the agency of original jurisdiction (AOJ) obtained a VA medical opinion in June 2014. The opinion provider discussed the November 2013 initial consultation, including the fact that the risks and alternatives were discussed with the Veteran, that he understood and accepted the possible risks, and that he requested to move forward with the surgery. The opinion provider then noted that the January 2014 consent form for the procedure acknowledged the risks and complications associated with Dupuytren's contracture-palmar fasciectomy including the following: infection, nerve or blood vessel injury, temporary or permanent numbness or weakness, unsightly painful scar, unexpected change in procedure at the time of the surgery, less than complete recovery of normal function or pain relief and recurrence of scar tissue and contracture (loss of motion due to scar tissue). After discussing the operative notes, the opinion provider noted the April 2014 treatment record which noted that the Veteran had developed a recurrent scar contracture of the left hand involving the left little finger, and he was provided with three different treatment options, including amputation. In summation, the opinion provider concluded that, after reviewing all available records, it was his professional opinion that the Veteran's claimed disability was not a result of the January 2014 surgery; that he did not suffer additional disability as a result of VA's carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA physician; and that any additional disability resulted from routine potential complications associated with the type of surgery performed, of which the Veteran was informed prior to the surgery.

In his August 2014 notice of disagreement, the Veteran argued that he was unaware of the risks involved with the surgery. He stated that he now felt numbness in his hand, that he had no feeling in his little finger, that he had no strength, that his hand was virtually useless, that it was at a very bad angle, and that it was much worse than it was before.

In support of his claim, the Veteran submitted a September 2014 letter from a private treatment provider who noted his history of Dupuytren's contracture and the January 2014 surgery. The treatment provider noted that, following the surgery, he experienced decreased sensation in the ulnar two digits. The Veteran told the treatment provider that he was compliant with splinting during the postoperative period until he was told he could wean from splints. He stated that he experienced a substantial recurrence, decreased grip strength, decreased functioning, contracting scars, and marked functional impairment after the splints were removed. After physical examination, the Veteran was diagnosed with recurrent Dupuytren disease, left hand, after surgical correction with decreased sensation potentially related to scarring around the nerve versus injury to the nerve during the surgery. The treatment provider then indicated that further surgery may be warranted.

During his October 2018, the Veteran argued that the surgeon who performed the January 2014 surgery cut too deep causing him to feel numbness and tingling feelings, as well as decreased grip strength. The Veteran stated that he underwent the surgery to repair contracted fingers, and that his little finger started to contract again while it was in a splint. He also reported that, following the surgery, he experienced increased pain, numbness and tingling, and decreased grip strength. The Veteran also indicated that his treatment provider indicated to his that some nerves were cut during the surgery. 

In connection with the Board's May 2019 remand, the Veteran underwent VA examinations in November 2020, and he was diagnosed with the following conditions: left Dupuytren's contracture post-palmar fasciectomy with painful fifth digit scar contracture and left fifth digital neuropathy. The examiner noted that, following the January 2014 surgery, the wound over the left fifth digit was complicated and resulted in a scar contracture and apparent nerve damage to the left fifth digital nerve. The examiner then stated that the left fifth digital neuropathy was likely due to nerve compression caused by a scar contraction following the January 2014 surgery. The examiner then discussed the Veteran's long history of Dupuytren's contracture of the left hand, as well as his pertinent treatment records, including the November 2013 VA treatment record discussed above. The examiner noted that the January 2014 surgical report noted that the surgeon was careful to protect the digital neurovascular bundles, that a record from three days later noted that the Veteran had intact sensation; and that sensation was intact in all finger tips a month later. The examiner concluded that there was no evidence of nerve damage having taken place during the surgery.

The examiner noted that, following the surgery, an area of flap necrosis developed over the left little finger, and that such was not an unexpected complication associated with the surgery. The examiner also noted that, despite multiple treatment providers counseling him on the importance of wearing a splint, he only wore the splint twelve hours a day. The examiner also noted that it was clear that the Veteran failed to adhere to the post-surgical recommendation, and he eventually developed scar contracture on the left hand that is about as bad as the Dupuytren's contraction prior to the surgery. The examiner continued that the scar contracture simply could not have occurred had the Veteran worn the splint as instructed. The examiner then noted the September 2014 letter noting the Veteran's report of decreased sensation in the left hand, as well as the surgeon's impression that it was potentially related to the scarring around to nerve as opposed to an injury during the surgery.

Ultimately, the examiner opined that the Veteran's post left palmar fasciectomy and the complications of the surgery, including the left painful fifth digit scar contracture, digital neuropathy, and scar were at least as likely as not the result of the January 2014 surgery, and that such constituted an additional disability. However, the examiner concluded that the additional disability was less likely than not the result of carelessness, negligence, lack of proper skill, error in judgment, or any similar such instance of fault on the part of VA stemming from the January 2014 surgery. The examiner again noted that the surgeon was careful to protect the digital neurovascular bundles, and that the surgeon was clearly successful given the post-surgical report that sensation was intact in all fingertips. Insofar as the Veteran began to experiencing symptoms of numbness in September 2014, the examiner noted that such was not the result of the surgery itself, but that it developed in concert with the scarring contracture of the left fifth digits, and the neuropathy was a late and unfortunate result of that scarring.

Based on the evidence of record, the Board finds that any increase in disability or additional disability following the January 2014 surgical removal of Dupuytren's contracted fascia of the long, ring, and little fingers of the left hand that was not proximately due to VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. In this regard, the Board finds that the November 2020 VA medical opinion is most probative opinion of record on this question. The November 2020 VA medical opinion provides a detailed analysis of the Veteran's condition before and after the January 2014, as well as the pertinent surgical notes, and the examiner provided a complete rationale based on his review of the records. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). 

Significantly, the examiner noted that the additional symptoms and complications following the surgery that the Veteran experienced following the surgery were reasonably foreseeable, and that those risks were clearly communicated to the Veteran as demonstrated by the informed consent that was signed by him. Furthermore, the examiner noted that, despite multiple treatment providers counseling him on the importance of wearing a splint, the Veteran only wore the splint twelve hours a day, and that the subsequent scar contracture and associated residuals simply would not have occurred had the Veteran worn the splint as instructed.

Furthermore, insofar as the Veteran's claims that the potential complications were not communicated to him, the Board finds that such is contradicted by the other evidence of record, including the November 2013 VA orthopedic surgery consultation note, as well as the signed January 2014 Consent for Clinical Treatment/Procedure. Critically, the January 2014 Consent for Clinical Treatment/Procedure notes that risks and complications associated with the procedure included nerve injury; temporary or permanent numbness/weakness of the extremity; less than complete recovery of normal functional or pain relief; and recurrence of the scar tissue and contracture (loss of motion due to scar tissue).

As the weight of competent evidence shows that the Veteran did not incur additional disabilities or an increase in the severity of existing disabilities stemming from VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable, the "benefit of the doubt" rule is not for application, and the Board must deny the claims. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

 

CHRISTOPHER A. WENDELL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	James R. Springer, 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.