Citation Nr: 22052303 Decision Date: 09/14/22 Archive Date: 09/14/22 DOCKET NO. 19-20 305 DATE: September 14, 2022 REMANDED The claim for compensation under 38 U.S.C. § 1151 for additional disability resulting from right hand surgeries and follow-up treatment performed at the Richmond VA Medical Center (VAMC) between 2002 and 2003 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that in January 2022 written statement, the Veteran asserted that he also appealed a claim for compensation under 38 U.S.C. § 1151 for psychiatric disorders resulting from his right hand surgeries. The June 2017 rating decision on appeal specifically addressed compensation under 38 U.S.C. § 1151 for psychiatric disorders and physical damage to the right hand. However, on his June 2018 notice of disagreement (NOD), the Veteran only indicated that he disagreed with the denial of compensation for physical damage to the right hand, and a May 2019 statement of the case (SOC) only addressed compensation for physical damage to the right hand. Accordingly, the Veteran has not perfected an appeal of the claim for compensation under 38 U.S.C. § 1151 for psychiatric disorders, and that issue is not presently before the Board. See 38 C.F.R. §§ 20.201, 20.202. The Veteran is advised that if he wishes to file a supplemental claim for compensation for psychiatric disorders, he should do so on the appropriate form at the RO. 1. The claim for compensation under 38 U.S.C. § 1151 for additional disability resulting from right hand surgeries and follow-up treatment performed at the Richmond VAMC between 2002 and 2003 is remanded. The Veteran asserts that surgeries performed on his right hand at the Richmond VAMC in 2002 and 2003 were performed improperly, resulting in pain, bleeding, and draining. He also asserts that a right carpal tunnel release was performed without his consent, despite assurance from his physicians that they would not operate on his previously injured right wrist. Additionally, the Veteran asserts that there was a delay from the Richmond VAMC in sending his physical therapy order to the Beckley VAMC, which hindered his post-operative recovery. The Veteran testified during the May 2021 Board hearing that his hand surgeries have caused extreme pain and an inability to move his right fifth finger. VA treatment records show that in July 2001, the Veteran sustained a laceration to the palmer aspect of the right fifth finger. It was noted that he previously sustained a laceration to the right wrist three years earlier, which left a jagged scar over the volar surface of the wrist above the carpal tunnel and resulted in persistent neuropathic pain, numbness, and tingling along the right second, third, and fourth fingers. The Veteran was scheduled to undergo a two-stage surgical procedure due to the loss of function in the left fifth finger caused by the July 2001 laceration. On October 10, 2002, the Veteran underwent a right fifth finger flexor tendon exploration and silastic rod insertion. On July 11, 2003, the Veteran underwent the second stage of the right flexor tendon reconstruction of the fifth digit with plantaris graft. In August 2003, the Veteran presented to the emergency room at the Beckley VAMC with complaints of pain and draining, and he was prescribed antibiotics. In September 2003, it was noted that the Veteran was placed in a splint by occupational therapy (OT), but he did not undergo therapy at that time, and a consultation for OT at the Beckley VAMC was placed. On October 30, 2003, it was noted that the order for OT was never placed. The treatment provider apologized for the miscommunication and attempted to rectify the situation. In September and November 2005, the Veteran told treatment providers that he did not have a satisfactory result from his prior hand surgeries, and he reported continued pain in the right fifth finger and limited range of motion. Thereafter, the Veteran was referred to the Durham VAMC. A December 2005 VA treatment record shows that the Veteran had a permanent flexion contracture. The treatment provider at the Durham VAMC indicated that in light of the Veteran's prior procedures, he did not believe it was practical to try to obtain active flexion in the right fifth finger. In May 2017, a VA examiner reviewed the evidence of record and opined that "the additional disability resulted from carelessness, negligence, lack of proper skill, or similar incidence of fault on the part of the attending VA personnel." In support of this, the examiner explained that the Veteran consented to the procedures after being advised of the risks of surgery; he no issues during the procedures; and he was followed with surgical outpatient in a timely manner. The examiner concluded that "it was not carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel." The examiner also opined that "the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider." In support of this, the examiner explained that nobody can expect the complication, but it happens in any standard hospital with skilled personnel at any time even with all kinds of precautions. The Board finds that a new VA medical opinion is necessary because the May 2017 VA examiner's opinions are confusing and contradictory. Notably, the examiner provided positive nexus opinions with rationales to support negative nexus opinions. Additionally, it is not clear whether complete VA treatment records have been obtained. The Veteran asserts that he underwent a right carpal tunnel release during his first hand surgery at the Richmond VAMC without his consent, and subsequent VA treatment records refer to a carpal tunnel release performed on October 10, 2002. However, the only procedure identified on the post-operative note from the surgery performed on October 10, 2002, is a right hand fifth finger flexor tendon exploration with silastic rod insertion. Moreover, VA treatment records that have been associated with the claims file contain pre-operative and post-operative notes from the surgeries performed on October 10, 2002 and July 11, 2003, but they do not appear to contain operative reports. On remand, the agency of original jurisdiction (AOJ) should ascertain whether operative reports from the Veteran's hand surgeries exist, and if so, obtain those records. Finally, the May 2017 VA examiner's opinion indicates that the Veteran gave his consent to surgery after being informed of the risks and potential complications of surgery, "including recurrence of symptoms, requiring further treatment, infection that may require antibiotics, blood vessels injury with possible excessive bleeding, nerve injury with temporary or permanent numbness/weakness of the extremity, unsightly or painful scar, unexpected change in procedure at the time of surgery, and less than complete recovery of normal function or pain relief." However, VA treatment records that have been associated with the claims file do not appear to contain any records identifying the specific risks cited by the VA examiner. On remand, the AOJ should ascertain whether informed consent documents relating to the Veteran's hand surgeries exist, and if so, obtain those records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all operative reports from the Veteran's hand surgeries performed at the Richmond VAMC on October 10, 2002, and July 11, 2003, as well as any informed consent documents relating to those surgeries. If such records do not exist or cannot be obtained, a formal finding as to whether further attempts to request the records would be futile should be made and the Veteran notified of such. 2. After the above records development has been completed, provide the claims file to an appropriate VA clinician to obtain a new medical opinion pursuant to the Veteran's claim for compensation under 38 U.S.C. § 1151. Do not schedule the Veteran for a VA examination unless it is deemed necessary by the clinician to respond to the questions presented. After review of the claims file, the clinician should answer the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hand surgeries performed at the Richmond VAMC on October 10, 2002 and July 11, 2003, and/or additional VA surgical and follow-up treatment caused or contributed to the Veteran's claimed right hand pain and/or limitation of motion? (b.) If the treatment caused or contributed to the Veteran's claimed right hand pain and/or limitation of motion, is it at least as likely as not that the proximate cause of such was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment, including the delay in ordering post-operative occupational and/or physical therapy? (c.) If not, was the proximate cause of the Veteran's claimed right hand pain and/or limitation of motion due to an event not reasonably foreseeable? A complete rationale for all opinions must be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.