Citation Nr: 1126231 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 07-15 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a bilateral arm and hand disability with neck pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from December 1948 to December 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran requested a hearing before the Board when he filed his substantive appeal in April 2007. The Veteran contacted VA in August 2007 and indicated that he was unable to appear for a hearing before the Board in Nashville or in Washington, D.C. 38 C.F.R. § 20.704(e) (2010). His request for a hearing is therefore withdrawn and the Board will proceed without further delay. The Board remanded the Veteran's claims for additional development in August 2010. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran is not shown to have additional disability, including a bilateral arm and hand disability with neck pain, that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospitalization or medical or surgical treatment, or that the proximate cause of any such disability was an event which was not reasonably foreseeable. CONCLUSION OF LAW The requirements for compensation under 38 U.S.C.A. § 1151 for additional disability claimed to be caused by hospitalization, or medical or surgical treatment provided by the VA are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). The RO sent correspondence in July 2005 and June 2006; a rating decision in March 2006; and a statement of the case in April 2007. Those documents discussed specific evidence, particular legal requirements applicable to the claims, evidence considered, pertinent laws and regulations, and reasons for the decisions. VA made all efforts to notify and to assist the appellant with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the November 2010 supplemental statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to the claims. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore the error was harmless). Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are payable for additional disability not the result of the Veteran's own willful misconduct, where such disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a VA employee, or in a VA facility, where 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 VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002); VAOPGCPREC 40-97 (1997), 63 Fed. Reg. 31263 (1998). 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 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. 38 C.F.R. § 3.361(d) (2010). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient 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 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 if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c) (2010). The informed consent process must be appropriately documented in the health record. Signature consent is required for all diagnostic and therapeutic treatments or procedures that require anesthesia. 38 C.F.R. § 17.32(d) (2010). 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 disclosed in connection with the informed consent procedures of § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2) (West 2002). The Veteran contends that he is entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability which he claims resulted from injection of a contrast dye prior to a computed tomography (CT) scan of the head at VA in November 1993. Specifically, he claims that he developed pain in his arms following the injection of contrast dye prior to the CT scan. He reported aching in the forearm muscles briefly after the event which later resolved but he ultimately developed progressive pain in his neck and numbness in both hands. VA outpatient treatment reports show that the Veteran underwent a cranial CT with and without contrast in November 1993. Prior to the procedure, the Veteran signed a Request for Administration of Anesthesia and for Performance of Operations and Other Procedures (Standard Form 522) dated November 23, 1993. The Form 522 indicates that the Veteran was advised of the purpose of the procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications. In June 1994, the Veteran reported cramps in his left arm since he had needle sticks. X-rays of the left and right shoulder and cervical spine showed degenerative joint disease. In July 1994, the Veteran reported that he had something, presumably dye, injected into his left arm some months prior while undergoing a CT scan on his head. He indicated that a blood vessel in the area where the dye was injected was initially penetrated and another VA employee had to come in and complete the injection. The Veteran indicated that he had cramps and aching in his left arm from the wrist up to the shoulder. He also noted that he had trouble with his neck before the CT scan was performed. Physical examination at that time show decreased range of motion of the left shoulder with crepitus and no weakness in the left upper extremity. The examiner also noted that there were no induration or masses in the area of the injection. The Veteran was noted to have good range of motion of the cervical spine. The Veteran was assessed with left shoulder bursitis which was improving on ibuprofen. Private treatment reports submitted from F. Brown, Jr., M.D., dated in May 1983 indicate that the Veteran ambulated with "well worn crutches." The Veteran also submitted a statement from F. Poe dated in June 1983 which indicates that the Veteran used crutches for twenty years and a statement from L. Patikas, M.D., dated in June 1983 which indicates that the Veteran had to "walk on crutches." The Veteran submitted a statement with his substantive appeal dated in March 2007 in which he indicated that he had never been examined by VA while using crutches. The Veteran underwent a VA examination in November 2010 at which time the examiner reviewed the Veteran's relevant medical history and performed a physical examination. The examiner noted that the Veteran's diagnosis, based on electromyography and nerve conduction studies, was bilateral median and ulnar neuropathies and degenerative disc and joint disease of the cervical spine. The examiner noted that the Veteran wore wrist braces for both wrists. The examiner also reported that the Veteran has a history of longstanding impairment of ambulation since the early 1950s which was attributed to a psychiatric disorder known as conversion reaction. The examiner reported that the Veteran has been unable to walk independently since the early 1950s and used crutches as ambulatory aids for approximately three decades and for the past fifteen to twenty years he used a wheelchair. The examiner diagnosed the Veteran with bilateral ulnar and median nerve compression syndromes with pain and cervical radiculopathy, not due to the November 1993 CT scan. The examiner's rationale was that the difficult cannulation and extravasation of liquid into the antecubital space which occurred at the time of the November 1993 CT scan would not result in the documented conditions found in the Veteran and claimed as due to the November 1993 CT scan. The examiner noted that the extravasation of liquid was quite localized by the Veteran's history and resolved within a few days. The examiner reported that the anatomic location of the median and ulnar nerves of the left arm was such that neither would have been in danger of any injury from extravasation liquid at that location. The examiner indicated that there was no medical reason that such extravasation would in any way affect the right upper extremity or cervical spine. The examiner further commented that there exists no medical connection between the November 1993 CT scan and the pain conditions reported by the Veteran, later diagnosed as compressive neuropathies of the ulnar and median nerves and degenerative disc and joint disease of the cervical spine. The examiner stated that the extravasation at the time of the November 1993 CT scan neither caused nor aggravated any condition diagnosed in the Veteran. Finally, the examiner noted that the incident described by the Veteran is a known complication of the cannulation of veins and injection of liquids into the vein. The examiner concluded that there was no evidence of negligence on the part of VA medical staff. The examiner indicated that there was no evidence that the Veteran suffered any permanent injury as a result of the CT scan in November 1993. The examiner noted that the Veteran's degenerative disc/joint disease of the cervical spine and overuse injuries of the upper extremities were caused by prolonged use of crutches followed by prolonged use of a wheelchair due to a conversion reaction induced loss of the ability to walk. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to compensation benefits pursuant to 38 U.S.C. § 1151 for bilateral arm and hand disabilities with neck pain. Although the Veteran was initially seen with complaints in his left arm following the 1993 cranial CT scan, an examination of the left arm in July 1994 noted that there were no induration or masses in the area of the injection. The Veteran was diagnosed with degenerative joint disease of the right and left shoulder and the cervical spine at that time. The Veteran's current diagnoses include bilateral median and ulnar neuropathies and degenerative disc and joint disease of the cervical spine. The only competent medical opinion of record, that of the November 2010 VA examiner, indicates that there was no evidence of negligence on the part of VA staff, and that the Veteran does not have any permanent residuals of the CT scan. The examiner indicated that there is no evidence that the Veteran suffered any permanent injury as a result of the CT scan in November 1993. The examiner provided a complete rationale for that opinion. The examiner noted that the Veteran's degenerative disc/joint disease of the cervical spine and overuse injuries of the upper extremities was caused by prolonged use of crutches followed by prolonged use of the wheelchair due to conversion reaction induced loss of the ability to walk. In short, while the Veteran has current diagnoses related to his upper extremities, there is no competent medical evidence that indicates that the Veteran experiences any additional chronic disability related to the CT scan in November 1993. The Board has considered the Veteran's statements in which he indicated that he believes that his current upper extremity disabilities are related to the November 1993 CT scan. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the competent medical evidence reveals no evidence that the care rendered by VA was negligent, careless, or otherwise involved fault on the part of VA. Additionally, while the Veteran has indicated that he was never examined by VA while using crutches, presumably to rebut the VA examiner's conclusion that his current upper extremity disabilities are related to his use prolonged use of crutches, private medical records indicate that he used crutches for at least twenty years prior to using a wheelchair for ambulation. For the reasons and bases set forth above, the Board must conclude that the preponderance of the evidence is against the Veteran's claim and that claims must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). ORDER Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for a bilateral arm and hand disability with neck pain is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs