Citation Nr: 25005258 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 17-14 562 DATE: April 17, 2025 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of left palmar fasciectomy is denied. FINDING OF FACT The Veteran did not suffer an additional disability related to his left palmar fasciectomy that is proximately due to carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of left palmar fasciectomy have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1969 to April 1972. During his period of service, he earned the National Defense Service Medal, Meritorious Unit Commendation Medal, Vietnam Service Medal, and Vietnam Campaign Medal with Device. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in December 2021. A transcript of that hearing is of record. The appeal was most recently before the Board in March 2024, at which time the Board remanded the issue of compensation under 38 U.S.C. § 1151 for residuals of left hand surgery for further development. Entitlement to compensation under 38 U.S.C. § 1151 Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service connected. For purposes of this section, a disability is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 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, or examination to the veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. 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. Hospital care, medical or surgical treatment, or examination cannot cause the continuation or natural progress of a disease or injury for which the care, treatment, or examination 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). 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). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Consent may be express or implied as set forth in 38 C.F.R. § 17.32(b). The proximate cause of a veteran's additional disability or death will be considered to be the result of an event that was not reasonably foreseeable if a reasonable health care provider would not have foreseen the possibility of the occurrence of the event given the particular circumstances of the case. Therefore, the event need not be completely unforeseeable or unimaginable, but it must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). In making the determination as to whether an event was reasonably foreseeable, VA considers whether the risk of the adverse event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures that are set forth in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Merely because a treating physician, expert, or other health care provider actually foresaw certain risks does not mean that a reasonable health care provider with primary care for the patient would have disclosed these risks. The test to apply is how a reasonable health care provider would behave if asked to perform a certain procedure on a veteran with the same characteristics as the veteran in a given case. Schertz v. Shinseki, 26 Vet. App. 362, 369 (2013). 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. Consent may be express (i.e., given in orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 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). The informed consent process must be appropriately documented in the medical record. 38 C.F.R. §17.32(d). A July 2015 treatment record documents the Veteran's "trouble with the Dupuytren's contractures on his left hand, little finger," as well as "another band going from the index [finger] to the thumb." See CAPRI, dated March 7, 2016, p. 108. Later that month, the Veteran presented for history and physical examination in order to proceed with his scheduled left small finger excision of Dupuytren's contracture and excision of the mass volar aspect just proximal to the index finger of metacarpophalangeal (MCP) joint. See id, p. 102. The clinician documented that the Veteran's questions were answered, and concerns addressed to his satisfaction at the time of examination. Further, the Veteran verbalized understanding that the preoperative plan may need to be altered based on intraoperative findings. After thorough discussion, he also verbalized understanding that risks must be assumed if he wished to proceed with surgery. Risks of the surgery were specifically listed. See id, p. 105. Prior to undergoing the palmar fasciectomy, the Veteran signed a consent form acknowledging the risks of the surgery. See id, p. 96. The Veteran underwent palmar fasciectomy in August 2015 at the Asheville VAMC. See id, p. 90, dated March 7, 2016. The Veteran tolerated the procedure with a normal post-operative course. At discharge, he was provided post-operative instructions. See id, p. 89. Post-operative VA treatment records reveal complaints of decreased range of motion, strength, and dexterity; pain; weakness; and stiffness. As a result, the Veteran underwent an electromyography (EMG) in December 2015. See id, pp. 16-17. The examiner noted reduced passive range of motion in the fifth digit. Left median sensory and motor neuropathy was also noted across the wrist segment. The Veteran appeared for a VA hand and finger conditions examination in April 2016. The examiner noted the Veteran's complaints of pain, instability, numbness, incoordination, swelling, and stiffness in the left index finger, long finger, ring finger, and small finger. The examiner opined that it was less likely as not that the reported pain and stiffness in the left hand and/or carpal tunnel syndrome was caused by or became worse as a result of the August 2015 palmar fasciectomy. In support of the opinion, the examiner explained that the Veteran's left hand degenerative joint pain and stiffness was associated with normal aging. The examiner also explained that the Veteran's documented carpal tunnel syndrome had minimal signs and symptoms affecting the left hand. The examiner also opined that it was less likely as not that additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. In support of the opinion, the examiner indicated that by the Veteran's own admission and demonstration, the preoperative degree of flexion deformity was significantly greater than the postoperative flexion deformity. The examiner further noted that residual Dupuytren's contracture (contracture of palmar fascia) was a common result of the difficulty of palmar fasciectomy, which results in persistent disability of the hand. The examiner opined that the Veteran suffered additional disability that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner explained that the Veteran had signs and symptoms of significant injury and disability to the ulnar nerve of the left hand, which resulted in increased pain in the forearm, wrist, and hand, as well as decreased strength and light touch sensitivity. However, the examiner further opined that it was less likely as not that a failure on the part of VA to timely diagnose and/or properly treat the Veteran's finger condition allowed the disability to continue to progress, as there are no treatment options to improve the Veteran's surgical outcome. A clarification opinion was provided in February 2017 as to whether the Veteran has additional disability resulting from an event not reasonably foreseeable. The examiner opined that the Veteran has ulnar nerve damage resulting in wrist and hand pain as a consequence of the surgery; however, this was not an event not reasonably foreseeable. The examiner indicated that this was a possible complication of this type of surgery. In fact, it is one of the main complications of this type of procedure and is the type of nerve damage contemplated in the informed consent document signed by the Veteran. Therefore, the examiner opined that ulnar nerve damage is a result of the surgery, but was not caused by the negligence, lack of skill, or fault of the medical team. The Veteran testified at his December 2021 Board hearing that prior to his surgery, his finger tensed up and needed to be straightened out. He testified that he went in for surgery on his pinky finger, but it resulted in damage to the ring finger. The Veteran explained that he could not bend his ring and pinky fingers completely and was unable to make a fist. He also had to make adjustments because of pain. He further testified that no one explained the possible side effects of surgery beforehand. An independent medical opinion was obtained in June 2023. The examiner opined that it was less likely than not that the Veteran had additional left-hand disability as a result of the August 2015 palmar fasciectomy. In support of the finding, the examiner noted review of the Veteran's medical records and indicated the Veteran underwent Dupuytren's contracture excision on his left hand in August 2015. Pursuant to an August 2015 nursing note, the Veteran denied having pain. A September 2015 occupational therapy treatment note documents improvements in the Veteran's finger range of motion at all joints/digits since initial evaluation. An additional September 2015 occupational therapy treatment note indicates the Veteran was progressing and able to make a full fist after finger flexion/extension exercises. During an October 2015 occupational therapy visit, the Veteran stated that his hand was feeling better. At the time of a November 2015 occupational therapy visit he reported continued hand stiffness, but it seemed to be improving. The examiner explained that surgery could improve, but may not completely restore, the use of one's hand. According to cited literature, the examiner explained that Dupuytren's disease comes back after surgery about half the time and indicate that one may need another surgery to keep the use of his hand. The examiner also opined that the Veteran's left hand disability was sustained due to a reasonably foreseeable event. In support of the finding, the examiner explained that it was known that Dupuytren's contracture surgery does not guarantee a full recovery, and it cannot cure the disease. The examiner opined the Veteran's left hand disability was a residual from the initial condition prior to surgery, as there were no complications according to an August 2015 surgery operative note. An advisory medical opinion was obtained in April 2024. The examiner noted that review of the Veteran's records showed that he had symptoms identified in the July 2015 signed informed consent for palmar fasciectomy and the April 2016 VA hand and finger conditions examination report, to include pain, instability, numbness, incoordination, swelling, and stiffness in the left index, long, ring, and small fingers. The record showed that the Veteran had an X-ray of left hand prior to surgery that revealed articular joint space narrowing in the distal interphalangeal (DIP) and proximal interphalangeal (PIP) joints of the fifth finger with a flexion deformity. Mild narrowing was also seen in the first carpal metacarpal joint spaces, which the examiner opined was the result of nerve compression involving the left ulnar nerve, as noted on April 2016 examination, which caused pain, instability, numbness, incoordination, swelling, and stiffness in the left index finger. Therefore, the examiner opined it was less likely than not that the Veteran had additional left-hand disability as a result of the August 2015 palmar fasciectomy. The examiner further notes that the Veteran underwent surgery with no complications noted. The Veteran was advised for the procedure and consented. The examiner explained that there was no evidence that the above VA treatment conditions caused, aggravated, or worsened the Veteran's left hand condition. Further, the examiner indicated that the Veteran had symptoms of the ulnar nerve compression condition prior surgery as noted on X-ray. Hence, the examiner determined that the symptoms were not related to the VA treatment at issue and was an uncontrollable event. Therefore, the examiner opined that it was less likely than not that the Veteran's left-hand disability was sustained due to an event not reasonably foreseeable. After careful review of the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence is against a finding that the Veteran is entitled to VA compensation pursuant to 38 U.S.C. § 1151. To this end, while the Board finds that the Veteran has additional disability in the form of decreased strength and light touch sensitivity in the left hand following August 2015 surgical treatment furnished by VA, the evidence of record does not support a finding that the Veteran's residuals of left palmar fasciectomy are proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. In this respect, the Board affords great probative weight to the VA examiners' opinions as they, collectively, considered all of the pertinent evidence of record, to include the Veteran's relevant medical history and his contentions, and provided complete rationales, relying on and citing to the records reviewed. Moreover, the examiners 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"). Notably, there is no medical opinion to the contrary. Moreover, the Veteran's additional disability was not the result of an event not reasonably foreseeable. In making this determination, the Board has considered the February 2017, June 2023, and April 2024 VA opinions of record. Importantly, the February 2017 VA examiner opined that the Veteran's wrist and hand pain as a consequence of the palmar fasciectomy was not an event not reasonably foreseeable, as this was a possible complication of this type of surgery. The June 2023 VA examiner opined the Veteran's left hand disability was sustained due to a reasonably foreseeable event, as it was known that Dupuytren's contracture surgery does not guarantee a full recovery. Further, the April 2024 VA examiner opined that it was less likely than not that the Veteran's left-hand disability was sustained due to an event not reasonably foreseeable. In sum, the Board finds the additional disability was reasonably foreseeable. With regard to the issue of informed consent, the Veteran was informed about the possible complications and risks associated with palmar fasciectomy, such as nerve damage, and the Veteran accepted these risks when he signed the informed consent form on July 28, 2015. While the Veteran has stated that he does not remember being informed of the risks of the surgery, the evidence surrounding the August 2015 surgery, in particular the signed informed consent form noting associated risks of additional deficits, reflects that the Veteran was indeed informed of the risks of the August 2015 surgery. 38 C.F.R. § 17.32(c). To be clear, the Board is not questioning the Veteran's honesty or moral character. The Veteran is attempting to recollect events that transpired several years ago. Moreover, the stress related to surgery and the amount of pre-surgery paperwork and discussion compels a conclusion that the Veteran is not an accurate historian as to this particular testimony. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). Therefore, the Board cannot assign the statement probative weight. Id. In signing the informed consent document, the Veteran affirmed that the procedure, including its risks and benefits, had been explained, alternative treatments had been explained, and that his questions had been answered. 38 C.F.R. § 17.32(c), (d). The document was also signed by the presiding physician noting that all necessary information had been provided. 38 C.F.R. § 17.32(c), (d). As such, the evidence establishes that the Veteran's informed consent was properly obtained prior to the August 2015 surgery. The Board therefore finds that VA health care providers complied with the informed consent requirements of 38 C.F.R. § 17.32 prior to the Veteran's August 2015 palmar fasciectomy. See 38 C.F.R. § 3.361(d)(1)(ii); see also Halcomb v. Shinseki, 23 Vet. App. 234 (2009) (even a generic informed consent form may be adequate where no objection is made to the content of the informed consent). The Board has considered the Veteran's statements regarding the effects of the residuals of left hand surgery. The Board concedes that the Veteran is competent to testify regarding such observable symptomatology, such as pain and decreased range of motion. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Veteran is not competent to render a medical opinion on whether there was carelessness, negligence, lack of skill, or similar incidence of fault on the part of VA as he has not been shown to possess the requisite training or credentials needed to render an opinion on the proper standard of medical care. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notably, at the time of his December 2021 Board hearing, the Veteran testified that he did not have any information to support a finding that the surgeon was negligent, lacked proper skill, or did something wrong. Consequently, the Board gives more probative weight to the objective medical evidence of record and April 2016 VA medical opinion, which supports a finding that the Veteran's disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. In light of the above, the Board does not find any probative medical evidence to suggest that the Veteran's additional disability was caused by a failure of his VA physicians to exercise the degree of care that would be expected of a reasonable health care provider. In this regard, the evidence clearly establishes that the Veteran's residuals are considered foreseeable for palmar fasciectomy, and the Veteran was properly informed of this risk. Moreover, there is no evidence to suggest that his treating physicians departed from acceptable levels of medical care, or the performance of professional duties expected of a reasonable health care provider. In summary, the Board finds that the most probative evidence establishes that the Veteran's residuals of left palmar fasciectomy are not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. Accordingly, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the weight of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 Vet. App. 776 (Fed. Cir. 2021). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.