Citation Nr: 1314273 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 05-17 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a right wrist disability of discoloration of an area around right wrist. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to December 1996. She also had service with the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2006, the Veteran testified before a Decision Review Officer at the RO. A transcript of the hearing has been associated with the claims file. This issue was remanded for further development in Board decisions dated in February 2010 and January 2012. FINDING OF FACT The medical evidence of record does not show that the Veteran has a qualifying additional right wrist disability as a result of Kenalog injections in the right wrist in April 2003 and thereafter for treatment of DeQuervain's tenosynovitis. CONCLUSION OF LAW The criteria for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right wrist disability have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the 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 claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in an October 2003 letter. That letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing her claim, and identified the Veteran's duties in obtaining information and evidence to substantiate her claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). While the notice provided did not include any information concerning disability ratings and effective dates that could be assigned should her claim be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), since this decision affirms the RO's denial, the Veteran is not prejudiced by the failure to provide that information. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination). In view of the above, the Board finds that the notice requirements have been met. VA also has a duty to assist a Veteran in the development of a claim. That duty includes assisting the Veteran in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's post-service VA treatment records, including records pertaining to the April 2003 and February 2004 VA steroid injections, have been obtained. The claims file does not present evidence of a claimed third injection in 2007, but a further remand for such records is not warranted in this case because there is no subsequent medical evidence of a current additional disability as a result of any injections. The Veteran's Virtual VA electronic records were also reviewed and considered. She has undergone VA medical examinations and opinions. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Where a veteran suffers an injury or aggravation of an injury resulting in additional disability by reason of VA medical or surgical treatment, compensation shall be awarded in the same manner as if that disability were service connected. 38 U.S.C.A. § 1151 (West 2002); Anderson v. Principi, 18 Vet. App. 371 (2004); Kilpatrick v. Principi, 16 Vet. App. 1 (2002). The regulations pertaining to claims for compensation pursuant to 38 U.S.C. § 1151 filed on or after October 1, 1997 were amended, effective September 2, 2004. 69 Fed. Reg. 46,426 (Aug. 3, 2004). Those regulations implemented amended provisions of 38 U.S.C. § 1151 and were codified at 38 C.F.R. § 3.361. For additional disability claimed as due to VA treatment pursuant to 38 U.S.C.A. § 1151, the disability must be caused by hospital care, medical or surgical treatment, or examination furnished the veteran by VA, and the proximate cause of the disability must be attributable to: (a) 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 (b) an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1) (West 2002); 38 C.F.R. § 3.361(d) (2012). 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)(1) (2012). 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2012). Also, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b) (2012). In determining whether disability resulted from disease or injury or aggravation of an existing disease or injury suffered as a result of VA care, the evidence must show actual causation rather than coincidental occurrence. 38 C.F.R. § 3.361(c)(1) (2012). The disability must not be the result of willful misconduct. 38 U.S.C.A. § 1151(a) (West 2002); 38 C.F.R. § 3.301(c)(3) (2012). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for Kenalog injections received at a VA facility in April 2003, February 2004, and 2007 for alleviation of DeQuervain's tenosynovitis of the right wrist. The Veteran, contends her skin pigmentation in the right wrist area changed to a lighter color for several months after each injection and that she was not told of this risk before she consented to the first injection in April 2003. The Board finds that the preponderance of the evidence is against the claim and that compensation under 38 U.S.C.A. § 1151 is not warranted. An April 2003 VA medical record shows that the Veteran was seen for pain in her right arm and pain in her right wrist extending down her thumb which was numb. She said that when she made a fist it hurt over the dorsum of her thumb and bone. The resident recommended an injection of Lidocaine and steroid. An addendum to the record noted that the procedure, indications, risks, and alternatives were explained to the Veteran who consented to the procedure. It also was noted that one minute after the first injection of Lidocaine significant improvement in pain was obtained. Subsequently, a second injection of Kenalog was administered. The claims file contains a copy of an April 2003 informed consent form signed by the Veteran and her attending physician for infiltration of the right wrist with Lidocaine and steroid for treatment of Quervain's tenosynovitis. VA medical records dated in April and May 2003 noted that the Veteran was provided a right wrist and hand splint and referred for a rehabilitation medical occupational therapy consultation. A July 2003 VA medical record noted changes in the Veteran's skin pigmentation at the right wrist after her steroid injection. In a January 2004 VA medical record, a resident described the Veteran's complaints of right arm pain from wrist to shoulder. The resident noted the Veteran's reaction to the injection in the past, so the did not feel another injection was indicated. A February 2004 VA plastic surgery clinic record noted that the Veteran complained of right wrist pain and indicated that she had received an injection to her right wrist in the past which caused depigmentation of the skin. It also was noted that complete repigmentation of the site had occurred. A subsequent February 2004 VA plastic surgery clinic record noted that the Veteran told a VA plastic surgeon that, after considering conservative versus surgical options, she preferred a corticosteroid injection for treatment of her right wrist first dorsal compartment tenosynovitis. It was noted that after informed consent was obtained, the Veteran received an injection of Kenalog into the right wrist first dorsal compartment. Mixed with the Kenalog was a very small amount of local one percent Lidocaine with epinephrine. It was noted that the Veteran remarked on immediate postinjection relief. Other VA records dated in February 2004 noted that lidocaine topical patches were ordered for the Veteran. A May 2004 VA dermatology consultation record noted that the Veteran had been diagnosed with DeQuervain's tendonitis versus carpel tunnel syndrome and she had received two Kenalog intralesional injections to the right wrist area which helped reduce her pain, but turned her skin light. A well demarcated hypopigmented patch at the right wrist with irregular borders was noted. The resident examiner stated that after the Veteran's first injection, her skin color returned after nine months. Her second injection was sometime around February 2004, but the resident stated that her skin color had not yet returned. The assessment was post inflammatory pigment alteration that was not an allergic reaction. The resident stated that color should return in 6 to 12 months. An August 2004 VA neurology clinic record noted that the Veteran was seen for right hand radial tenosynovitis. It was noted that her skin pigmentation on the right hand had resolved and that she had tolerated the steroid injection well in February 2004. During her December 2006 RO hearing, the Veteran testified that VA treated her right wrist on three occasions with steroid injections. The Veteran stated that the injections changed her skin pigmentation to a white color in the area of the shot, but that the skin pigmentation returned to normal after 9 to 12 months. She stated that VA treated her for her wrist probably because of injuries to her right hand, right shoulder, and right arm during active duty. She also testified that a doctor told her that cortisone injections could cause skin discoloration, but that warning was not given until after her first injection when her skin changed colors. She also stated that she was lucky that her skin returned to normal, but that she would rather take the shot and alleviate the pain than not take the shot because of concerns about her skin changing color. A May 2008 VA physical therapy consultation noted that the Veteran had been receiving shots in the right wrist due to DeQuervain's tenosynovitis and that her last shot had been in 2007. At the conclusion of an October 2008 VA examination, an examiner opined that the Veteran's DeQuervain's tendonitis was not caused by or a result of her service-connected right shoulder disorder. The examiner explained that DeQuervain's tendonitis was caused when tendons on the thumb or radial side of the wrist were swollen or irritated, which caused the lining around the tendon to swell, which changed the shape of the compartment. The examiner stated that type of tendonitis was caused by overuse or inflammatory or rheumatoid arthritis. The doctor found that there was no literature to support a correlation between DeQuervain's tendonitis and a shoulder injury or condition. The Board notes that the Veteran subsequently was denied service connection for DeQuervain's tendonitis of the right wrist in a March 2009 rating decision. A March 2009 VA medical record noted that the Veteran had three injections in the right hand in the past. The Veteran underwent a VA examination in February 2010. However, the Board explained in the January 2012 remand that medical opinion that Kenalog injections do not have the side effect of depigmentation was questionable and inadequate as the Veteran had submitted evidence from the Internet that decreased skin pigmentation was associated with Kenalog injections. Therefore, the Board will not rely on the February 2010 examination and opinion in resolving this claim. An August 2010 VA dermatology clinic record noted hyperpigmented patches on her upper abdomen and bilateral thighs, but no mention of skin pigmentation losses on or about the right wrist. An April 2011 VA hand surgery clinic consultation record noted that the Veteran presented indicating a past history of corticosteroid injections to treat DeQuervain's tenosynovitis. She told the surgeon that she had three injections in the past. On examination, the right wrist and hand appeared normal with only nominal tenderness within the first dorsal compartment, which was noted as inconsistent with active severe DeQuervain's tenosynovitis. The surgeon also noted that a nerve conduction velocity study showed no evidence of carpal tunnel syndrome. February 2011 X-ray studies also showed no evidence of ligamentous injury, nor was there evidence of arthritis in the hands or wrists. The VA surgeon opined that the Veteran probably suffered from periodic extensor tendonitis for which she would be best treated by administration of oral nonsteroidal anti-inflammatory medications. He then prescribed Motrin and indicated that no further follow-up was indicated. At a February 2012 VA examination, the examiner, after reviewing the claims file and interviewing and examining the Veteran, found that the Veteran had a normal right wrist and had no additional diagnosed disability of the right wrist. The VA examiner also noted that X-ray studies were normal, there was no muscle atrophy, and no discoloration of skin to the wrist. In a March 2012 addendum, the February 2012 VA examiner noted that the physical examination and diagnostic testing in the February 2012 report were normal as there were no adverse effects noted from the use of the Kenalog injection. The VA examiner explained that although steroids may cause loss of pigmentation, that was usually only temporary. Normal as stated in the February 2012 VA examination indicated that there was no loss of pigmentation, discoloration, or any other abnormality noted to the right wrist. The examiner noted a review of recent and remote diagnostic studies, all of which were normal. Therefore, the opinion remained the same that there was no right wrist condition and, therefore, no diagnosed disorder. However, the examiner noted that the Veteran expressed pain, but that there was no supporting evidence or pathology to explain any pain to the right wrist. In determining whether the Veteran is entitled to compensation benefits under the provisions of 38 U.S.C.A. § 1151, the Board will first address the issue of whether a qualifying additional disability is shown. The Board notes that the record contains a medical opinion by the February 2012 VA examiner to the effect that the Veteran did not suffer any qualifying additional disability as the result of one or more Kenalog injections because her right wrist was normal. There is no contrary evidence in the claims file, to include the VA treatment records. The VA treatment records show that any skin depigmentation which developed as a result of Kenalog injections to treat the Veteran's presumed DeQuervain's tenosynovitis resolved within several months. A qualifying additional disability is a permanent disability, as opposed to a temporary condition. A claim for benefit pursuant to 38 U.S.C.A. § 1151 is a claim for disability compensation. A veteran is required to establish by submission of competent evidence that additional disability occurred following VA treatment. Jimison v. West, 13 Vet. App. 75 (1999). Thus, as the weight of the evidence of record is against a finding of any additional disability due to VA treatment, the criteria for compensation under 38 U.S.C.A. § 1151 have not been met. The Board further notes that in the absence of an additional disability, no inquiry needs be made as to carelessness or negligence on the part of VA or as to the foreseeability of the additional disability, because none has been found. 38 U.S.C.A. § 1151 (West 2002). The Board notes that in her Board testimony the Veteran credibly testified that her doctor did not tell her that cortisone injections could cause skin discoloration until after her first shot in April 2003. However, the Board finds that it does not need to address the adequacy of any informed consent she gave or signed because, as previously mentioned, the Board is denying the Veteran's claim based on the lack of additional disability, and not based on foreseeability. Thus, the Board does not need to proceed to the next step of determining the cause of additional disability. 38 U.S.C.A. § 1151 (West 2002). The Board notes that the Veteran has contended on her own behalf that she has a current disability that is due to VA negligence. However, the Veteran is not competent or qualified, as a layperson, to render an opinion concerning medical matters, such as the presence of an additional disability and medical causation. Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Specifically, where the determinative issue is one of a medical diagnosis or causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. Jones v. Brown, 7 Vet. App. 134 (1994). The Veteran, as a layperson, is not competent to opine on such matters. She is competent to report discoloration of her wrist, and that report is confirmed by medical evidence. However, that evidence also shows that the discoloration is resolved. The Veteran is not competent to diagnose any underlying, non-observable disability. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an additional disability as a result of injections in the right wrist in April 2003 and thereafter for treatment of DeQuervain's tenosynovitis. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right wrist disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs