Citation Nr: 18144077 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 15-27 327 DATE: October 23, 2018 ORDER Entitlement to compensation under 38 U.S.C. 1151 for loss of use of left arm is denied. REMANDED Service connection for pulmonary nodule in lung, asbestos related disease of the pleura as a result of asbestos exposure is remanded. FINDING OF FACT The Veteran did not sustain a permanent, chronic, additional disability of the left arm as a result of VA treatment between August 2010 and July 2012, including carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for loss of use of left arm have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.10, 3.361, 17.32 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from January 1965 to January 1967. The issues are on appeal from a March 2015 rating decision. Entitlement to compensation under 38 U.S.C. 1151 for loss of use of left arm The Veteran contends that treatment between August 2010 and July 2012 that he received from the Buffalo VA medical center (VAMC) was negligent when in their treatment of a left arm humerus fracture, and as a result of the residual pain, he has limited functional ability. A Veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the Veteran’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after the care or treatment is rendered. The additional disability or death must not have been due to the Veteran’s failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the Veteran’s additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. The second prong of proximate causation requires that the Veteran’s additional disability or death be an event that was not reasonably foreseeable. This fact is 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 the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures outlined in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The first question that must be answered with regard to these claims is whether the Veteran has an additional disability as a result of his VA treatment. The Veteran’s treatment record showed that he was admitted in August 2010 after falling 20 feet out of a tree, and was released with a humerus fracture brace at a private hospital. Between August 2010 and July 2012, the Veteran underwent various treatment procedures and surgeries including an open reduction and internal fixation (ORIF) surgery at the Buffalo VAMC. Records showed that the Veteran was warned multiple times after different procedures were performed of projected outcomes and prognoses, which included the risk of nonunion or malunion of the fracture site, following these treatments. CT scans taken in May 2012 showed complete nonunion of the left humerus. In August 2012, the Veteran underwent a revision fixation surgery by a private physician, Dr. C.M. A January 2014 follow-up treatment record from Dr. C.M. stated that the Veteran had a healed nonunion of the left humerus. Subsequent VA treatment notes showed no complaints of or treatment for the left humerus fracture. In March 2015, the Veteran was afforded a VA examination. Upon review of the Veteran’s medical history, the examiner opined that the left arm humerus fracture was not permanently aggravated nor was there any additional disability caused as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or by an event not reasonably foreseeable. The examiner pointed out that a January 2014 treatment record, as stated above, indicated normal findings after a left upper extremity neurologic evaluation had been conducted. Thus, the evidence does not reveal that the Veteran sustained an additional disability as a result of VA treatment between August 2010 and July 2012. There is no permanent residual of his left arm humerus fracture after his August 2012 surgery, and in fact, the operating surgeon deemed it healed in January 2014 after x-ray review and physical examination. Further, the March 2015 VA examiner found that based on the Veteran’s medical history, his left arm humerus fracture had healed with no residual issues. A review of VA and private treatment records dated from January 2014 to the present reveals no complaint, treatment, or diagnosis associated with the left arm humerus fracture. The Veteran asserts that he has constant pain in the arm which limits his function, and he is competent to speak to his symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, pain alone, without a diagnosed or identifiable underlying malady or condition, is not generally considered a disability and cannot substantiate a claim for compensation. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Accordingly, the competent and probative evidence does not establish that the Veteran sustained a permanent, chronic, additional disability of the left arm as a result of VA treatment either between August 2010 and July 2012. Thus, the appeal for benefits pursuant to 38 U.S.C. § 1151 is denied. REASONS FOR REMAND Service connection for pulmonary nodule in lung, asbestos related disease of the pleura as a result of asbestos exposure is remanded. The Veteran was afforded a VA examination in March 2015. He was diagnosed with a lung nodule and asbestosis. The examiner opined that the Veteran’s pulmonary nodule in the lung was less likely than not related to his military service despite his military occupational specialty as an engineman with probable exposure to asbestos because the Veteran worked in construction as a carpenter after separation. As a rationale, she stated that carpenters had the highest exposure of any type of occupation to asbestos. Therefore, the examiner could not determine whether the asbestos finding was due to his military exposure or his environmental exposure as a carpenter without resorting to mere speculation. In his May 2017 hearing, the Veteran confirmed that he worked as a carpenter after separation. However, he clarified that as a carpenter he had very limited exposure to asbestos in this position as he did not work in a factory, and mainly performed roadwork or on new construction on commercial buildings. On remand, an addendum medical opinion is needed considering this clarification of the Veteran’s work as a carpenter, that does not contain a speculative and therefore, less probative rationale. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the same March 2015 examiner. If the original examiner is unavailable, a new examiner may be assigned to address the requested opinion. The examiner should provide an opinion, with supporting rationale, as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed pulmonary nodule in the lung is causally related to his period of active service. The examiner should specifically note the Veteran’s post-separation occupation as a carpenter and his assertions that he had very limited exposure to asbestos as he did not work in a factory, and worked on roadwork and on new construction (primarily form work and dry wall in commercial buildings). (Continued on next page) 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel