Citation Nr: 1323885 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-17 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for nerve damage of the left arm and hand due to surgery for malignant melanoma of the left arm. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from November 1954 to November 1956. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified before the undersigned Veterans Law Judge at via videoconference in November 2010. A transcript of the hearing has been associated with the claims file. In January 2011, the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and in a Memorandum Decision of January 2011, the Court set aside the Board's decision and remanded the claim for readjudication. In January 2011, the Board also remanded the issue of entitlement to service connection for peripheral vascular disease of the lower extremities for further development. In a July 2012 rating decision the RO granted service connection for left and right lower venous insufficiency with chronic stasis. As the benefit sought has been granted in full, the issue is no longer before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks compensation under 38 U.S.C.A. § 1151 for nerve damage of the left arm and hand due to surgery for malignant melanoma of the left arm. VA treatment records indicate that a biopsy in May 2006 revealed melanoma on the Veteran's left upper arm. Preoperative records indicate that the risks, benefits, options, and potential complications were discussed with the Veteran. He underwent wide local excision of the melanoma biopsy site in May 2006. The surgical report indicates that informed consent was obtained prior to the surgery. A July 2006 VA treatment record indicates that the Veteran was seen to discuss further surgical management of his melanoma. He was seen for pre-operative examination in July 2006 at which time the risks and benefits of re-excision were discussed, and informed consent was obtained. The associated July 2006 surgical report does not note complications. The Veteran was seen post-operatively in July 2006. His wound was well healed. In March 2007 the Veteran complained of weakness and tenderness at the site of his scar. The provider noted that neuroma was possible, as well as reflex sympathetic dystrophy and nerve entrapment. A provisional diagnosis of brachial neuritis or radiculitis not otherwise specified was provided. A September 2007 VA pain clinic note indicates the Veteran's complaint of pain since his 2006 surgical melanoma excisions. He described numbness and tingling radiating down his arm and involving all of his left fingers. Following physical examination, the provider indicated that the Veteran's pain was most likely secondary to adhesive capsulitis. On neurological consultation in January 2008 the Veteran reported pain and numbness dating to removal of a melanoma in 2006. He stated that he also felt decreased strength in his left hand. Physical examination revealed a mild decrease in strength of the wrist. Clear sensory loss was not present. Median and ulnar motor conduction studies were within normal limits. Sensory conduction studies were also within normal limits. Bilateral median sensory nerve action potentials were absent bilaterally in the digital fibers of the second and third fingers. EMG examination revealed large amplitude motor units in the abductor plexus brevis muscles bilaterally. Studies of other selected muscles of the left arm including the left radial innovated muscles did not reveal clear abnormality. Studies in the Veteran's legs were not performed based on his request. The neurologist concluded that the studies did not reveal evidence for focal neurogenic injury affecting the left arm. He noted that the clinical significance of findings consistent with neurogenic injury affecting sensory fibers in the median, ulnar and abductor plexus brevis muscle should be interpreted cautiously but could be consistent with the presence of distal neuropathic dysfunction. He stated that further evaluation for a peripheral neuropathy could not be performed due to an inability to study the Veteran's legs. A VA examination was carried out in September 2008. The Veteran's history was reviewed. Notably, he related that in February 2007, he had woken with severe left shoulder and arm pain that was greater than his post-operative baseline. He stated that at that time, he had weakness and numbness of his entire left arm. He seemed to imply that the weakness may have developed a number of days after the onset of severe shoulder and left arm pain, and stated that since that date in February 2007 he had experienced persistent numbness of the entire arm. Physical examination revealed a somewhat limited motor examination of the left upper extremity; the examiner noted that such was probably due to pain since the Veteran appeared to have some give-way weakness when motor function was tested. There did not appear to be any significant atrophy of the left forearm compared to the right. Both hands appeared to have mild dorsal interossei atrophy. The examiner pointed out that the upper extremity reflexes were hyperreflexic at 3+. There was decreased sensation in the left upper extremity to all modalities but the decrease was not in a nerve root distribution but essentially diffuse. The diagnosis was left arm weakness and pain. The examiner noted that the time course of the Veteran's symptoms was interesting in that he developed a modest amount of pain after the second surgery in July 2006 but that all testing at that time suggested that strength and function of the arm was normal. He concluded that at the time the history would suggest no direct damage to the motor component of the nerves. However, he noted that the Veteran's pain persistent for months and that in February 2007 the Veteran woke with significantly more shoulder and left arm pain followed by weakness of the left arm. The examiner indicated that the type of history experienced by the Veteran, where one develops a severe shoulder and arm pain followed by weakness, brought up a diagnostic entity called Parsonage-Turner syndrome or idiopathic brachial plexopathy. He noted that the Veteran had some chronic pain following surgery but then a different process developed in February 2007 that exacerbated the pain and caused the weakness. He indicated that there were other possible differentials, including cervical cord lesion. He noted the possibility that development of a scar over time could cause compression of the radial nerve and thus later translate into some weakness and numbness due to entrapment; however, he cautioned that the difficulty with that concept was that it would be difficult to postulate how a scar could compress all of the nerves and result in numbness of the entire arm rather than in a particular distribution. He concluded that there was mild additional disability following the surgery that was later exacerbated by another condition unrelated to the surgery. He further concluded, however, that there was no evidence that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the attending VA personnel, or was the result of an event not reasonably foreseeable or anticipated by a competent and prudent health care provider. He also stated that there was no evidence that VA failed to timely diagnose and properly treat the claimed disease or disability. In the Memorandum Decision of January 2011, the Court observed that the record contained divergent diagnoses that were never reconciled and that were speculative at best. Indeed the Court pointed out the divergent diagnoses noted in the March 2007, September 2007 and January 2008 VA treatment records. Moreover, the Court found that the September 2008 VA examiner did not reconcile the diagnoses but rather engaged in more speculation regarding the multiple diagnoses. The Court found that some of the proffered diagnoses could be ruled out if further testing or additional examinations were conducted. Accordingly, the Board finds that a new VA examination is needed prior to deciding the claim. On remand an examination by a neurologist should be conducted and a medical opinion as to the diagnosis of the current condition should be obtained. The Court also noted the Veteran's contention that the Board had erred by not seeking out treatment records from physicians he mentioned at his hearing, or advising him to submit such records. Accordingly, the Board finds that he should be provided the opportunity to identify all health care providers who have records he believes to be relevant to his appeal, and to submit authorization forms so as to allow VA to obtain those records. Finally, the Court also noted the Veteran's assertion that the Board erred by failing to address the issue of informed consent. It was noted that General Counsel indicated that they had obtained informed consent forms for the two procedures performed by VA and offered to submit them into the record. The Court declined the offer, however, finding that it was the Board's responsibility to evaluate the issue of informed consent in the first instance. The Board notes that the records currently associated with the file contain reference to informed consent having been given but do not appear to contain the actual forms. Accordingly, while this case is in remand status, the consent forms for both procedures performed in 2006 should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the consent forms for the procedures performed in May 2006 and July 2006, and associate those forms with the claims file. All reasonable attempts should be made to obtain such records. If those records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified d why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any additional pertinent evidence not currently of record, to specifically include any medical records relating to the Veteran's claimed disability that have not yet been associated with the claims file. The RO should also invite the Veteran to submit any pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. Associate any records received, including negative responses, with the claims file. 3. The RO/AMC should schedule the Veteran for an examination by a neurologist to determine whether he has any additional disability due to fault on VA's part due in performing the two 2006 surgeries. If possible, the examiner should be a person who has not treated the Veteran in the past. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, including any pertinent evidence located in Virtual VA, must be made available to the examiner for review. The examiner is also asked to elicit relevant history from the Veteran directly. The examiner must identify any and all disabilities present associated with the claimed weakness, numbness and pain of the left arm. The examiner must specifically comment on the diagnoses provided in March 2007 of possible brachial neuritis or radiculitis NOS; in September 2007 of arm pain most likely secondary to adhesive capitulates; in January 2008 of possible distal neuropathic dysfunction; and by the September 2008 VA examiner. To the extent possible, the examiner must reconcile the proffered diagnoses and state which diagnosis is the most likely cause of the Veteran's complaints of pain, numbness and weakness of the left arm. If a concrete diagnosis cannot be rendered without resorting to mere speculation, the examiner must so state and must provide a rationale for the fact that a diagnosis could not be rendered. The examiner is requested to review all pertinent records associated with the claims file, and to fully and thoroughly examine the Veteran. Thereafter, and for any diagnosis rendered, the examiner must indicate whether there is any additional disability due to the 2006 surgeries to excise a malignant melanoma. If so, the examiner should also comment as to whether the additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, or whether the outcome of the procedure was an event not reasonably foreseeable. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).