Citation Nr: 0004736 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-03 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to compensation benefits for residuals of surgery for Dupuytren's contracture release of the right hand pursuant to the provisions of 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from January 1951 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in North Little Rock, Arkansas. Hearings were held at the RO in December 1993 and June 1996 before a local hearing officer. FINDINGS OF FACT 1. The veteran was hospitalized at the VA Medical Center in Shreveport, Louisiana (VAMC) in November 1992, at which time he underwent Dupuytren's release of the right hand. 2. The November 1992 VA surgery and associated treatment or lack of treatment resulted in additional disability involving the right hand. CONCLUSION OF LAW The criteria for entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for residuals of surgery for Dupuytren's contracture release of the right hand are met. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not alleged that there are any records of probative value that may be obtained, which have not already been associated with his claims folder. The Board accordingly finds that the duty to assist the veteran, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. The veteran contends that he incurred an additional disability, namely residuals of surgery for Dupuytren's contracture release of the right hand, as a result of VA treatment. He specifically contends that the additional disability is a result of treatment provided by the VA Medical Center (VAMC) located in Shreveport, Louisiana in November 1992. The applicable statute provides that, where a veteran sustains a disease or injury, or an aggravation of an existing disease or injury, as the result of VA training, hospitalization, medical, or surgical treatment or a course of vocational rehabilitation, or as a result of having submitted to an examination, not the result of such veteran's own willful misconduct, and such disease, injury or aggravation results in additional disability or the death of such veteran, disability or death compensation shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (a) (1999). In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition, which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C.A. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. 38 C.F.R. § 3.358(b) (1999). In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. (4) When the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, it will bar him (or her) from receipt of compensation hereunder except in the case of incompetent veterans. 38 C.F.R. § 3.358(c) (1999). Where disease, injury, death or the aggravation of an existing disease or injury occurs as the result of having submitted to a VA examination, medical or surgical treatment, hospitalization or a course of vocational rehabilitation under any law administered by VA and not a result of the veteran's own willful misconduct, disability or death compensation or dependency and indemnity compensation will be awarded for such disease, injury, aggravation or death as if such condition were service connected. 38 C.F.R. § 3.800. 38 U.S.C.A.§ 1151 was amended with regard as to what constitutes a "qualifying additional disability." The revisions became effective October 1,1997. The amendment serves to further restrict the application of 38 U.S.C.A. § 1151 as negligence is now a factor to be considered and, thus, would be less favorable to veteran than the statute prior to the revisions. The United States Court of Appeals for Veterans Claims (Court) has held that where the law changes after a claim has been filed or reopened, but before the administrative or judicial process has been concluded, the version most favorable will be applied, unless Congress provided otherwise or permitted the VA Secretary to provide otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Accordingly, the more favorable version of 38 U.S.C.A. § 1151, in effect before October 1997, will be applied to the veteran's claim. The evidence of record demonstrates that the veteran was hospitalized in the VAMC in November 1992. The report of this hospital discharge summary indicates that the veteran had been experiencing a significant amount of flexion contractures of the PIP [proximal interphalangeal] joints of his right ring and middle fingers which were causing him a great amount of difficulty and disability since he is right handed. Dupuytren's contracture release of the right hand was performed during this hospitalization. At the time of discharge there was some residual paresthesia in all digits of the right hand presumably from his long acting axillary block. The report also notes that he was to return to the orthopedic clinic on November 30, 1992, in order to discuss further range of motion exercises for his hand and to check the splints. A VA orthopedic clinic progress note, dated November 30, 1992, shows that the veteran was status post release right hand for one week and that he was in an extension splint. It was also noted that he was healing well with no purulence. Pain medication was shown to have been prescribed and the veteran was noted to have been instructed to remove his splint daily to perform ROM exercises. He was seen at VA orthopedic clinic on December 18, 1992 for a follow-up visit. At that time it was reported that the veteran was status post Dupuytren's release for one month for the right ring and middle fingers. It was also noted that he was doing well. The treatment plan indicated that he was to continue ROM exercises as well as wear the splint at night. A January 1993 VA orthopedic clinic progress note shows that the veteran complained of right hand pain. The PIP joints were still contracted at 60 degrees. Status post Dupuytren's release of the right hand was diagnosed. He was instructed to continue to use extension splint and to do ROM exercises. A February 1993 VA orthopedic clinic progress note indicates that the veteran left without being seen, but stated that he was unable to both wear his splint and do ROM exercises. The veteran was hospitalized at a VA facility in April 1993 for recurrent Dupuytren's contracture of the right hand. It was reported that he had been experiencing increasing contractures of the right long and ring fingers. He was admitted for occupational therapy. Examination showed metacarpal phalangeal (MP) joints at approximately 90 [degrees], PIP joints at approximately 45 degrees, and distal interphalangeal joints (DIP) at about 30 degrees on his ring and long fingers. It was noted that after extensive physical therapy and paraffin therapy, along with the use of extension splints, the veteran gained almost to neutral of his MP's, greater than 45 degrees of his PIP's, and without change of his DIP's. It was recommended that the veteran seek private injections and therapy near his home. Of record is a May 1993 Review of a Plan of Care/Assessment for Outpatient Rehabilitation form, from a private facility. It was noted that the veteran had reported that the pain had gotten worse since the November 1992 surgery, and that his hand was non-functional. His grip strength was 3/5 with increased pain. He was using a wrist immobilzer. He reported decreased strength, ROM, pain, and burning. It was noted that the veteran had been treated a total of three times and that no further therapy was indicated except at home to be performed by the veteran himself. A private physician's report dated in May 1993, indicates that the veteran had Dupuytren's excision of the right hand at the VAMC in November 1992. The veteran informed the physician that no postoperative splinting was carried out and that little if any initial therapy was conducted. An evaluation showed two very tightly contracted scar bands in the ring and long fingers which resulted in fixed flexion contractures of about 90 degrees at the PIP joints. He had extremely tight metacarpal phalangeal joints in all four fingers. There was some swelling in the dorsum of the hand. The veteran complained of hypesthesia particularly in the dorsum of the hand. The physician was unclear whether this represented a problem with the median palmer cutaneous nerve or was simply the result of the wound healing. He appeared to have full function of the thumb with pain. It was further reported that the veteran had stiffness in all uninvolved joints, tenderness and limitation of extension of the wrist and pain. A May 1993 VA orthopedic clinic progress note indicates that the veteran's right hand deformity was identical to the preoperative condition despite VA hospitalization and therapy in April 1993. It was further noted that the [November 1992] Dupuytren's release procedure had failed secondary to lack of postoperative extension, due to the veteran's noncompliance as well as the failure of VA to order new splint early in the postoperative period. A private hospital operative report dated in October 1993 shows a preoperative diagnosis of fixed flexion contractures, right long, ring, and little fingers, status post previous excision Dupuytren's contracture, right hand and palm. The postoperative diagnosis was noted to be the same, with findings of recurrent Dupuytren's contracture in the right long and ring fingers with shortening of all structures including skin, neurovascular bundles, fibrous flexor tendon sheath, and flexor tendons. Exploratory surgery of the right hand was performed. He underwent private physical therapy in October and November 1993. Personal hearing were held at the RO in December 1993 and June 1996. The veteran essentially stated that he experienced damage to his right hand as a result of the November 1992 VA surgery. He testified that he was not contacted for the purpose of undergoing physical therapy until April 1993, 5 months after his surgery. He added that he complied with all instructions concerning the performance of exercises. A September 1997 letter submitted by a private physician indicates that he had followed the veteran for several months following a distal radius fracture, which had healed uneventfully. He commented that the veteran had a history of two prior Dupuytren's contracture of the right hand surgeries which left him with PIP flexion contractures of the long and ring fingers, and, to a lesser extent, the little finger, resulting in the inability to actively or passively extend his fingers. It was further noted that he had difficulty with his hand in grasping things and getting his hand in his pocket. The letter further indicated that the veteran, in September 1997, underwent PIP amputations of the long and ring fingers of the right hand because of continued problems with flexion contractures and no relief with physical therapy. The Board remanded this case in January 1998 in order to accomplish additional development of the evidence. In pertinent part, following VA orthopedic examination, the examiner was to render an opinion as to the following: What is the degree of medical probability that the appellant developed any identifiable additional disability(ies) concerning his right hand, due to treatment, to include the Dupuytren's contracture procedure and/or the subsequent physical therapy or the claimed delay in the therapy he received at the VAMC in Shreveport, Louisiana. The report of VA examination dated in December 1998 contains a diagnosis of Dupuytren's contractures of the hands bilaterally. The clinical history indicated that the veteran fell in March 1997 and his right arm was placed in a cast. When the cast was removed he had contractures of the third and fourth fingers of the right hand which caused a great deal of pain. To relieve the pain the distal two phalanges of the third and fourth fingers were amputated. The diagnoses included Dupuytren's contracture, bilaterally. The examiner indicated that the veteran had definite functional loss of both hands and loss of the distal third and fourth digits of the right hand. Color photographs were taken in conjunction with this examination are have been associated with the record. The examiner indicated that it did not appear that prior surgeries provided the veteran at the VAMC caused an increase in the progression of the disease. The veteran was examined by a VA orthopedist in May 1999. The report shows that review of the veteran's record indicates that in August 1990 minor contractures of the ring and middle fingers were diagnosed. A comprehensive history of the veteran's problems associated with his right hand was documented. The veteran complained of depressed function of the right hand, his dominant hand. Palmar fascia fibromatosis - Dupuytren's contracture was diagnosed. The physician opined that the veteran's surgical procedure was prolonged due to the nature of Dupuytren's contracture which is in itself an insidious and invasive process involving the palmar fascia and all its extensions. It was added that the nature of this produces a slow contracture in the fingers and that the chain of events in the veteran's history was classical. The orthopedist pointed out that complete extension was obtained or gained at the conclusion of the [1992] surgical procedure. For this phase of treatment, therefore, it was noted that the surgery was successful and corrected the basic condition. The physician went on to indicate that, upon entering the healing phase, the postoperative management became of importance; of equal stature to the surgery itself. Maintenance of splintage and ROM were noted to be most important, and, if this link of the chain is broken, it was pointed out, then the operation itself would not relieve the condition. The report notes that the veteran's hand was failing in the process of physical therapy management two weeks postoperatively. He noted that the use of the splint was painful and hard to bear, and that any delay, regardless of the cause would logically have a negative effect on the outcome of the surgical result. In direct response to the question posed above contained as part of the Board's January 1999 Remand, the orthopedist indicated that he was unable to establish a component element that would logically produce an answer as to any disability due to the natural progress of the disease or disability that was certain to result from or intended to result from the surgery. Therefore, he added, he was unable to state a component that would be due to VA treatment as opposed to other caused. An addendum to the May 1999 VA orthopedic examination, dated in June 1999, and completed by the same examining orthopedist, indicated that, the answer to the above-cited query, was "affirmative." He added that he was unable to answer the remainder of the questions as to components of the disability without resorting to speculation. Review of the record shows that an additional addendum, dated in July 1999, from the same VA orthopedist as referenced above, has also been made part of the record. This addendum, it was noted by the physician, was intended to provide comment as to the instructions cited in Paragraph 3(b) of the Board's January 1998 Remand. Paragraph 3(b) indicated: If the answer to the above is affirmative, the examiner should provide comments as to which specific components of the additional disability(ies) are due to VA treatment as opposed to other causes, including the "baseline" level of disability present before VA treatment and any disability due to the natural progress of the disease or injury, or whether the disabilities were certain to result from or intended to result from the surgery. A complete rationale for all opinions expressed should be included in the examination report. The orthopedist noted that the veteran's basic condition of Dupuytren contracture, and accompanying finger contractures, was corrected by the operative procedure performed at the VAMC [1992]. It was also noted that the baseline condition of the disorder owing to the nature of the disease remained, even though the effect of the fibromatosis was removed and/or corrected. The physician pointed out that the underlying disease or baseline condition produced a tendency for recurrence of the contractures of the fingers of the entire hand unless splintage and motion were promoted postoperatively. Failure of physical therapy treatment and splintage or the lack of these, it was noted, allowed the fibromatosis to reassert itself. He noted that it was reasonable to assume, and logical, that the veteran's right hand function returned to its preoperative non-functional state as far as the right hand was concerned and would place him in the same physical status that he was prior to the surgical procedure. The chain of events then led to the final procedure of amputation of the ring and middle finger elements at the proximal interphalangeal joint. Additionally, it was noted that these disabilities were not certain to result from and were not intended to result from the surgery. To summarize, in the May 1999 addendum, the VA examiner indicated that the treatment by the VA did result in additional disability. The June 1999 addendum is somewhat unclear. The physician indicated that the physical therapy treatment and splintage or the lack of these allowed the fibromatosis to reassert itself and that it was reasonable to assume that the right hand function returned to its preoperative non-functional state. However, the examiner indicated that these disabilities were not certain to result from and were not intended to result from the surgery. In this regard the objective medical evidence shows that prior to the November 1992 surgery the Dupuytren's contracture involve the PIP of the middle and ring fingers of the right hand. Postoperatively, the rehabilitation was unsuccessful. When evaluated by a private physician in May 1993 the contractures of the middle and ring fingers had returned. However, additional findings included stiffness in all uninvolved joints, tenderness and limitation of extension of the wrist and pain and swelling. The October 1993 private hospital report showed fixed flexion contractures, right long and ring fingers and also the little finger, and palm with shortening of all structures including skin, neurovascular bundles, fibrous flexor tendon sheath, and flexor tendons. After reviewing the record it is the Board's judgment that the evidence regarding the veteran's claim is in equipoise which gives rise to the benefit of the doubt doctrine. Any benefit of the doubt must be resolved in the veteran's favor. 38 C.F.R. § 3.102 (1999). Accordingly, the Board finds that the surgery in November 1992 and the associated treatment or lack of treatment rendered by the VA resulted in additional disability involving Dupuytren's contracture of the right hand. ORDER Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for residuals of surgery for Dupuytren's contracture release of the right hand is granted. ROBERT P. REGAN Member, Board of Veterans' Appeals