Citation Nr: 1300276 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-27 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right upper extremity disability, claimed as a result of medical treatment by the Department of Veterans Affairs Medical Center (VAMC). 2. Entitlement to service connection for nerve damage of the right wrist, right arm, right shoulder, and neck. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from November 1973 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) from July 2008 and May 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claims on appeal. The Board recognizes that the Veteran has presented evidence of multiple psychiatric disorders, including depression and an adjustment disorder. Previously, he was denied service connection for a nervous disorder. In a May 2006 rating decision, the RO declined to reopen the claim for service connection for a nervous disorder because new and material evidence had not been submitted. The Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, in the instant case, the Board finds that the Veteran's previous claim for a nervous condition is distinct from the current claim. For purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In Clemons, the Court determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively - after there has been a finding of fact based upon competent medical evidence. See Clemons, 23 Vet. App. at 8. In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding Veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. Therefore, the Board finds that the previous denial of a nervous condition is a separate claim and such is not on appeal before the Board, mainly because he is not claiming service connection for a nervous disorder, and the issue has thus been characterized as stated on the title page. In September 2011, the Veteran withdrew his request for a hearing before the Board, requested in June 2010. The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An additional disability manifested by right upper extremity pain, tingling, and numbness was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. 2. A nerve disability of the right wrist, right arm, right shoulder, and neck did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C.A. § 1151 for a right upper extremity disability claimed as due to treatment received at the VAMC have not been met. 38 U.S.C.A. §§ 1151, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). 2. The criteria for service connection for a nerve disability of the right wrist, right arm, right shoulder, and neck have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Proper notice regarding the claim for compensation pursuant to 38 U.S.C.A. § 1151 was provided in February 2007 and notice for the claim for service connection was provided in May 2009. With regard to the duty to assist, the Veteran's VA and private treatment records have been obtained and a negative reply was received for private records that are not available. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. Additionally, in August 2009, a VA examination and opinion was obtained in order to determine the etiology of any right upper extremity disability. The Board finds that the opinion received is thorough and well-explained such that further opinion or examination is not necessary in this case. Although there is no VA opinion of record as to whether the Veteran's right upper extremity disability is related to his service, for the reasons stated herein, the Board finds that such is unnecessary because there is no chronicity in service, continuity since service, or current disability contended to be related to service. In that regard, the current median neuropathy, the only identified right arm disability, has been medically linked to diabetes mellitus. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis 1151 Claim The Veteran contends that after receiving intravenous chemotherapy in September 2006 to treat his colon cancer, he developed pain and other problems at the injection site that never ceased and has resulted in a current right arm disability. Compensation under 38 U.S.C.A. § 1151 is awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was caused by VA medical treatment, and 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 medical treatment; or the additional disability was not reasonably foreseeable. 38 U.S.C.A. § 1151. Under 38 C.F.R. § 3.361(c), a claim based on additional disability due to medical treatment must meet the causation requirements. To establish causation, the evidence must show that VA's medical treatment resulted in additional disability. Merely showing that a veteran received treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. Under 38 C.F.R. § 3.361(d), to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment, it must be shown that the treatment caused the veteran's additional disability; and VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Whether the proximate cause of the additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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 informed consent. 38 C.F.R. § 3.361(d)(2). When there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. In May 2006, the Veteran was diagnosed with colon cancer. He underwent surgery and began chemotherapy. In August 2006, following a second round of intravenous chemotherapy, the Veteran experienced irritation and skin sloughing in the right forearm. There was no numbness or tingling. There was bilateral hyper pigmentation of the skin around the vessel. The assessment was bilateral chemo extravasation with grade 2 toxicity in the right forearm. He was given carasyn cream for wound healing and the placement of a chemo port was ordered. Two weeks later, the Veteran reported that his right arm pain had worsened. He had tingling in his fingers. There was pain and swelling at the site of the most recent chemotherapy infusion. A few days later he reported having burning pain in the right forearm. The veins were darkened and tender to touch. He had pain in his arm when moving his fingers. He elected to continue chemotherapy by way of an oral agent. Two weeks later, he continued to have pain and swelling in the right arm that was slowly getting better. He had finished taking an antibiotic. Physical examination showed no edema. There was skin tracing/scarring on the right forearm and hyper pigmentation where the chemo extravasation occurred. There was no pus or redness. Range of motion and neurological testing was intact. The assessment was right forearm pain. In October 2006, it was noted that he was continuing oral chemotherapy and that his right arm symptoms were improving. There was hyper pigmentation but no numbness, tingling, or muscle weakness. In January 2007, the Veteran reported ongoing right hand and arm pain. He had numbness in the thumb and first two fingers. Physical examination showed normal motor strength and grip. There was tenderness to palpation at the radial side of the right wrist. The assessment was wrist pain. He was to wear a wrist splint. In February 2007, he reported ongoing swelling and redness. A duplex ultrasound of the right upper extremity showed no deep vein thrombosis. The assessment was right arm pain. He complained of continuing pain in April 2007. He declined a wrist x-ray. In August 2007, he reported feeling like something was crawling on his right shoulder and neck. He had no arm deficit. He had a previous spine injury. He was assessed to suffer from chronic right arm radiculopathic pain. A February 2009 EMG revealed bilateral moderate median neuropathy at the wrist, right slightly worse than the left, probably not related to the vague pain presentation or to chemotherapy. There was no evidence of radiculopathy or peripheral neuropathy. In May 2009, the Veteran reported pain, crawling, and numbness in the right arm, shoulder, and neck. He reported that at times all of the fingers tingled. He had a weak grip at times. He denied any pain or nerve problem until the chemotherapy. Examination could not find anything wrong with the Veteran's arm. There was no indication of a nerve problem or muscle weakness. The physician felt that the Veteran did not have specific symptoms of carpal tunnel syndrome and that his problems went beyond the realm of median nerve blockage of the wrist. He had diabetes, which was a well-known reason for neuropathy. He also had chemo, which could cause neuropathy. He could not do an MRI because there was a bullet in the facial orbit. On August 2009 VA examination, the Veteran reported that his right forearm and wrist were injured while receiving chemotherapy for colon cancer. He reported that the next day his right forearm was swollen and the skin had darkened. He was given cream that made his skin peel off. Once the skin peeled off, he noticed that his right forearm and wrist were painful and the right hand was numb. He used a wrist splint which helped the pain. He took three to five hydrocodone for the pain and numbness per day. He had trouble remembering the events that led up to the contended right arm injury. The examiner noted that upon reviewing the claims file, the Veteran had stated since 2006 many body parts affected by the injury, including the "whole right side" and the feet. The examiner also noted that the complaints of pain were very general. After physically examining the Veteran and reviewing the claims file, the examiner diagnosed the Veteran with electrophysiological evidence of bilateral moderate median neuropathy, right greater than left. There were minimal physical findings on examination of the right wrist and forearm. There Veteran was diabetic, and those with diabetes had an increased incidence of compressive neuropathy such as carpal tunnel syndrome. Thus, the diagnosis was more likely associated with diabetes and less likely related to the claimed chemotherapy infusion. The examiner concluded that the Veteran did not suffer an injury to his right arm from the local reaction to the August 2006 chemotherapy due to negligence on the part of the VA. In so concluding, the examiner explained that subsequent treatment notes after the event consistently reported improvement of the reaction and demonstrated a lack of focal neurological deficits despite the Veteran's complaints. There was no objective evidence of permanent nerve damage. It was significant that the EMG showed bilateral median neuropathy because a neurological injury secondary to a specific incident would cause a deficit only at the site of injury, not to the contra lateral extremity. Moreover, the Veteran could not recall the events surrounding the injury which the examiner felt to be strange for such a reportedly significant injury. Moreover, the Veteran kept adding another body part to his list of complaints stemming from the injury. In conclusion, there was no objective evidence to support a finding of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing care to the Veteran in August 2006. First, the Board finds that the evidence is against a finding that the Veteran in fact currently suffers from an additional disability due to the August 2006 chemotherapy infusion and resulting toxicity. In that regard, in August 2009, the VA examiner explained that there was no indication of an objective disability resulting from the chemotherapy. While the Veteran suffered from bilateral median neuropathy, that condition was determined to be more likely than not related to his diabetes. On examination and in the treatment records, it was clear that although the Veteran experienced a reaction to the chemotherapy treatment, there was no indication of a permanent disability. Such a conclusion comports with the February 2009 EMG impression which stated that the median neuropathy was unrelated to his reported chemotherapy injury. The August 2009 examiner also clarified the finding in May 2009, stating that the median neuropathic symptoms were related to diabetes rather than to chemotherapy. Thus, the competent and probative evidence weighs against a finding of an "additional disability" upon which to file a claim under 38 U.S.C.A. § 1151 in this case. However, despite whether the Veteran currently suffers from an additional disability, the Board finds that his claim cannot prevail under the remaining criteria set forth under 38 U.S.C.A. § 1151. In that regard, the preponderance of the evidence demonstrates that the cutaneous toxicity that occurred following the August 2006 chemotherapy infusion was not the result of VA error or negligence. Specifically, the August 2009 VA examiner found no indication of negligence on the part of the VA in administrating the chemotherapy or in handling the treatment of the right arm reaction. Moreover, the examiner did not find any resulting disability that could be considered to be a result of the chemotherapy infusions, much less as due to improper care on the part of the VA. Finally, there is no other indication in the treatment records to support the Veteran's claim of negligence. Rather, following the August 2006 reaction, intravenous chemotherapy ceased and he began on oral therapy. The subsequent records demonstrate that with treatment, the right arm injury healed without neurological residual. There is also no indication that the reaction was an event that was reasonably unforeseeable, and the August 2009 VA examiner did not suggest such to be the case. Accordingly, the competent and probative evidence weighs against a finding of any negligence or improper care on the part of the VA such that the Veteran's claim under 38 U.S.C.A. § 1151 would prevail. Service Connection The Veteran alternatively contends that he suffers from nerve damage to the right wrist, arm, shoulder, and neck as a result of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for some disorders will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b)(2012). In this case, the service treatment records are negative for any indication of nerve pain in the right upper extremity or right side of the neck. Post-service VA and private treatment records are negative for such a disability until August 2006, when the Veteran experienced cutaneous toxicity to the chemotherapy infusion, and then a few years later, when he was found to suffer from bilateral median neuropathy. Thus, there is no indication of a chronic neurological disability in service and there is no indication of continuity of symptoms since service. The Veteran had not put forth any specific contentions as to how his neurological pain in the right upper extremity and neck are related to his service. His argument instead relates those symptoms with the treatment he received for his chemotherapy. However, he is not in receipt of service connection for his colon cancer or the treatment thereof, and the Board has denied his claim under 38 U.S.C.A. § 1151. Thus, a claim for direct or secondary service connection cannot prevail in this instance. III. Conclusion The Veteran has contended that he suffers from a right upper extremity disability due to service or due to improper care on the part of the VA under 38 U.S.C.A. § 1151. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Here, while the Veteran is competent to describe his symptoms, including numbness, pain, and swelling of the right upper extremity and neck, the Board accords the statements regarding the etiology of such symptoms little probative value as the Veteran is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has offered only conclusory statements when contending that his right arm symptoms were caused or aggravated by service or by improper care by the VA, resulting in an additional disability. By contrast, the VA examiner took into consideration all of the relevant facts in providing the opinion, to include the symptoms prior to, during, and after the chemotherapy infusion and resulting cutaneous reaction. Therefore, the Board accords greater probative weight to the VA opinion in this case than to the Veteran's statements. Additionally, there is no positive evidence to support the Veteran's claim that his symptoms are related to service, and the competent evidence only weighs against such a finding. In summary, and for the reasons and bases set forth above, the Board finds that the preponderance of the competent and probative evidence is against the Veteran's claims, the benefit-of-the-doubt doctrine is not for application, and he is not entitled to compensation under 38 U.S.C.A. § 1151 or service connection for a right arm and neck disability. ORDER Compensation under 38 U.S.C.A. § 1151 for a disability of the right upper extremity is denied. Service connection for nerve damage of the right wrist, right arm, right shoulder, and neck is denied. REMAND Additional development is necessary prior to further adjudication of the claim for service connection for a psychiatric disorder. The Veteran contends that he currently suffers from depression related to his early discharge from service. With regard to the circumstances of his early discharge, upon entrance into service, the Veteran stated "no" to the question of whether he had ever been arrested for a crime. However, during basic training it was found out that he had been arrested for a civil crime. He was discharged under a general discharge in January 1973 for fraudulent enlistment, but in December 1974, his discharge was changed to honorable. The Veteran contends that he had told the recruiting officer of the arrests and that he did not intend to defraud the government. He contends that due to the early discharge, he has suffered from depression related to the circumstances of his discharge and not being able to have served his full service term. Post-service treatment records during the appeal period reflect diagnoses of an adjustment disorder with mood disorder related to his colon cancer. In December 2006, he reported obsessive behaviors such as washing his hands. In February 2008, he reported being very fearful that his colon cancer would return. He had trouble sleeping. He was taking an anti-depressant. He reported having been hospitalized in 1984 for alcohol and cocaine. The diagnosis was a mood disorder due to colon cancer, with obsessive compulsive traits. Although treatment records lack reports of depression related to service, the Veteran is competent to state that he feels depressed due to the events surrounding his discharge and that the early discharge negatively impacted him. Because a VA examiner has not yet provided an opinion with regard to the claim, a VA examination should be scheduled to determine whether the Veteran's psychiatric disorder was caused or aggravated by his service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his psychiatric disorder. The claims file should be available to the examiner and the examiner should note that the file was reviewed. The examiner should provide a detailed rationale for the opinion reached. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current psychiatric disorder, to include depression, a mood disorder, or an adjustment disorder, was caused or aggravated by his service, specifically, the circumstances surrounding his early discharge from service. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for service connection for a psychiatric disorder should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs