Citation Nr: 18151748 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 06-32 007A DATE: November 20, 2018 ORDER Entitlement to service connection for skin condition, diagnosed as actinic keratoses, is granted. Entitlement to compensation under 38 U.S.C. § 1151 for a right wrist disability, claimed as due to VA medical treatment is denied. FINDINGS OF FACT 1. The Veteran’s actinic keratoses began during active service. 2. The Veteran’s right wrist disability is secondary to diabetic peripheral neuropathy, hypothyroidism, and degenerative changes rather than due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the treatment of the Veteran. CONCLUSIONS OF LAW 1. The criteria for service connection for actinic keratoses are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for right wrist disability have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service from April 1954 to April 1957 in the United States Marine Corps. The Veteran died during the pendency of this appeal, and his surviving spouse, the Appellant, was properly substituted. 1. Entitlement to service connection for skin condition, diagnosed as actinic keratoses, to include as due to exposure to radiation/chemicals is granted. The Appellant contends that the Veteran had skin conditions that were etiologically due to active duty service, to include exposure to radiation and/or chemicals. The Board concludes that the Veteran had a diagnosis of actinic keratoses that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran had a current diagnosis of actinic keratoses, and the November 2017 VA examiner opined that the Veteran had multiple keratoses throughout his life, described as scaly brown growths, and during his active service in Barstow, California, as competently and credibly reported by the Veteran and corroborated by the lay statements of RB, a fellow servicemember who was with the Veteran during that portion of active duty. While the Veteran was not competent to diagnosis his skin condition in service he was competent to report what he experienced, to include the description of the growths and his self-treatment through removal with a razor. As the VA examiner has opined that the Veteran’s competent descriptions of in-service skin condition was actually keratoses and that he continued to have actinic keratoses throughout his life the Board finds that, affording the Veteran the benefit of the doubt, the preponderance of evidence supports a finding that the condition is entitled to service connection. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a right wrist disability, claimed as due to VA medical treatment is denied. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability... were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151(a)(1)(A), (B); see Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). Hospital care, medical or surgical treatment, or examination cannot cause the continuation or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The proximate cause of disability is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when hospital care or medical or surgical treatment caused the veteran’s additional disability and VA either “failed to exercise the degree of care that would be expected of a reasonable health care provider” or furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1)(i), (ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361(d)(2). The event does not have to be “completely unforeseeable or unimaginable” but it must “be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” 38 C.F.R. § 3.361(d)(2); see Schertz v. Shinseki, 26 Vet. App. 362 (2013). The Appellant is seeking entitlement to compensation under 38 U.S.C. § 1151 for the Veteran’s right wrist disability, claimed as due to an arterial blood gas (ABG) blood draw conducted at the Portland, Oregon VAMC in December 2003. The Appellant’s claim was most recently before the Board in October 2017 when it was remanded for a VA opinion to determine the nature of any right wrist disability that existed since May 2004 and whether any diagnosed disability was at least as likely as not due to the December 2003 blood draw and whether there was any additional disability that was a reasonably foreseeable outcome of the procedure given the specific facts. The opinion was obtained in November 2017. The VA examiner diagnosed the Veteran with peripheral neuropathy of all extremities that existed prior to the December 2003 ABG blood draw that was most likely the result of “longstanding, poorly controlled, diabetes mellitus, as well as hypothyroidism.” The examiner also noted “entrapment from his dupuytren’s contracture, and limited joint movement due to his extensive degenerative disease of the right wrist.” None of the identified wrist disabilities, however, were found etiologically related to the ABG blood draw and all existed prior to the event. The VA examiner specifically addressed the November 2011 VA examination that diagnosed “injury to the median and ulnar nerves” and opined that the examiner who provided that diagnosis appeared to believe she was referring to a diagnosis that already existed, not rendering a new diagnosis. The examination did not reference a complete medical history. The Board has also found that this examination was inadequate in a previous decision. The November 2017 VA opinion also directly addressed Appellant’s contention that the ABG blood draw caused the Veteran’s diagnosed right wrist disabilities. The examiner opined that “there are two arteries at the level of the wrist which could conceivably be used for blood draw; the radial and the ulnar arteries…radial artery is universally used for blood draw because it DOES NOT run together with the median nerve at that level…[i]t is not possible to injure the median nerve while attempting to draw blood from the radial artery, and the electrodiagnostic studies showed that the Veteran’s entrapments were at the right wrist (for the median nerve), and the right elbow (not the right wrist) for the ulnar nerve.” The Board finds that the claim for entitlement to compensation under 38 U.S.C. § 1151 is not warranted. The evidence of record contains VA medical opinions addressing this question from November 2011 and March 2012 which have both been deemed inadequate by prior Board decisions. What is left is the adequate medical opinion obtained in November 2017. Essentially the November 2017VA examiner found that the Veteran’s right wrist disability manifested primarily in the right median nerve and was attributable to conditions which existed prior to the ABG blood draw, primarily poorly controlled diabetes and hypothyroidism. The examiner also identified entrapment and degenerative changes that predated the blood draw and were not otherwise related to the procedure. Furthermore, the VA examiner described the universal method for conducting this blood draw and how due to the separation of the artery used for this blood draw and the median nerve, the Veteran’s right wrist disability could not be caused by any moving of the needle. (Continued on the next page)   Therefore, as the preponderance of the evidence is against a finding that the Veteran had a right wrist disability that warrants compensation under 38 U.S.C. § 1151 the claim must be denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod