Citation Nr: 22019864 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 18-18 377 DATE: April 3, 2022 REMANDED Entitlement to compensation for left arm disability pursuant to 38 U.S.C. § 1151 is remanded. REASONS FOR REMAND The Veteran served in the United States Army from August 1980 to February 1983. This appeal to this Board of Veterans' Appeals (Board) is from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In November 2021, the Veteran testified in support of this claim during a "virtual" teleconference hearing before the undersigned Veterans Law Judge of this Board. A transcript of the hearing is of record. Partly because of that hearing testimony, the Board is remanding this claim back to the RO (AOJ) for necessary further development. Entitlement to § 1151 compensation for left arm disability is remanded. During the hearing, the Veteran and his attorney cited documentation of complaints in June 2013 of numbness or tingling in the Veteran's left hand and fingers. They added, an electromyograph (EMG) resultantly was recommended after a consultation with a nerve surgeon, but that it was scheduled, cancelled, rescheduled, then cancelled again because they did not initially have any clinician who could do it. He has a phobia of electricity; however, he admits later having three EMGs from 2013 to 2015, but still no actual consultation with a surgeon until 2015. Meanwhile, the symptoms had slightly worsened in interim, including diminished grip strength. In other testimony, the Veteran says he still has symptoms even since his surgery, pointing out that his baby and ring fingers are so numb he cannot feet anything in them, has no grip strength, still a burning sensation, but also elbow pain and has a lot of pressure in it. He said his hand constantly shakes and has spasms, that he cannot turn pages in a book (or do anything requiring dexterity skills), and that he resultantly is receiving disability benefits from the Social Security Administration (SSA). He explained that he was a heavy equipment operator before his surgery, that he returned to work after his surgery, but only for a short time since he did not have the feelings in his hand needed to continue doing that job. The Veteran and his attorney clarified that the basis of this claim is there was an inordinate delay in completing the surgery since it took so long to actually get the consultation with the surgeon and not so much any problem or issue with the surgical procedure, itself. The Veteran says the surgeon (Dr. G) told him upon awakening from the surgery that, if she had just gotten to him sooner (which the attorney acknowledges is just hearsay), she maybe could have saved the arm. The Veteran claims that, for all intents and purposes, he has lost all use of it. The Veteran's medical records confirm that, in 2013, he complained of pain and numbness in his left upper extremity (LUE), also referred to as in his left arm. Eventually, the diagnoses were carpal and cubital tunnel syndrome. He eventually underwent surgery in October 2015 to address the problem, though post-operative medical records show he complained of experiencing additional "pain and difficulty" after that surgery. According to the governing statute, 38 U.S.C. § 1151, when there is no willful misconduct by a Veteran, additional disability resulting from VA hospital care furnished the Veteran will be compensated in the same manner as if service connected, if the disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event that was not reasonably foreseeable. See also 38 C.F.R. § 3.361. Therefore, this is a specific type of claim, requiring specific evidence. First, there must be evidence of additional disability, as shown by comparing the Veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the Veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the Veteran by VA. 38 C.F.R. § 3.361(c). For additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1). Merely showing that a Veteran received care, treatment, or examination and that the veteran has additional disability does not establish cause. Id. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that the causation element of § 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs "in a [VA] facility" resulting from VA's negligence. See Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or 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). The factual elements necessary to support a claim under § 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered disability or death that probably would have been avoided if proper diagnosis and treatment had been rendered. See VAOGC Prec. 5-2001 (February 5, 2001). See also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, 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). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be 1) 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 2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). With regard to carelessness or negligence, 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 was the proximate cause of a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; 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. See 38 C.F.R. § 3.361(d)(1). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). With regard to reasonable foreseeability, whether the proximate cause of a Veteran's additional disability or death 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, § 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 "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." 38 U.S.C. § 1151(a)(1). The question of whether a certain course of action, had it been undertaken sooner, would have prevented the Veteran's LUE disability from worsening is a determination that only can be made by qualified medical personnel. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, while his medical records show complaints of worsening pain after his October 2015 surgery, whether the surgery had any impact on that also a medical and not lay determination. Id. Thus, the Board is obtaining medical comment concerning this before deciding this appeal. Accordingly, this claim is REMANDED for the following action: 1. Obtain medical comment concerning the Veteran's claim of additional LUE disability (loss of use). To this end, the examiner shall address the following: (a.) Does the Veteran have symptoms or impairment referable to his LUE that are owing to VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in provision of care (i.e., did VA fail to exercise the degree of care that would be expected of a reasonable health care provider specifically as relating to any alleged delay in scheduling and performing the carpal tunnel and ulnar nerve surgery in October 2015)? and (b.) Was there informed consent? and (c.) If he has additional disability, was or was it not reasonably foreseeable? KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.