Citation Nr: 19122829 Decision Date: 03/26/19 Archive Date: 03/26/19 DOCKET NO. 15-13 841 DATE: March 26, 2019 ORDER Entitlement to compensation under the provisions of 38 C.F.R. § 1151 for residuals of skin polyp removal, to include retained foreign body (suture) in back, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT In March 2015, the Veteran underwent elective skin polyp removal surgery on his mid-back. The evidence of record is at the very least in equipoise as to whether the Veteran suffered additional disability due to VA negligence or carelessness, in the form of a retained suture in his back and residual symptomatology thereof. CONCLUSIONS OF LAW Resolving all doubt in the Veteran’s favor, the criteria for compensation under the provisions of 38 U.S.C. §1151 for residuals of skin polyp removal, to include retained foreign body (suture) in back, are met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1969 to June 1971. Entitlement to compensation under the provisions of 38 C.F.R. § 1151. The Veteran contends that he incurred additional disability after undergoing outpatient surgery to have skin polyps removed at VA, after which a suture was left in his back and subsequently removed. Specifically, he said he has a remaining scar, manifested by tenderness, itchiness, and burning at night. See Hearing Transcript at p. 19. To the extent the Veteran has also asserted his additional disability includes anxiety and depression, compensation for such disability has already been awarded through a service-connection award for PTSD with major depressive disorder and generalized anxiety disorder, currently rated 70 percent disabling. If the Veteran wishes to file a claim for a higher disability rating, he may do so on a form prescribed by the Secretary. In pertinent part, 38 U.S.C. § 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service-connected. A qualifying additional disability is one in which the disability was not the result of the veteran’s willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran; and, the proximate cause of the disability is the result of 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 was the result of an event not reasonably foreseeable. Id. To determine whether the Veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based, to the Veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. §3.361(b). The mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation. Evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in additional disability. 38 C.F.R. § 3.361(c)(1). Pertinent evidence of record includes the Veteran’s VA treatment records, private treatment records, a March 2016 VA opinion, and the Veteran’s statements. The Veteran underwent outpatient surgery at a VA medical facility on March 23, 2015 to have skin tags and skin polyps removed. Treatment notes show that the Veteran underwent the removal of skin tags on the base of his neck and a skin polyp on his right mid back. Upon discharge, the dressing was dry and intact and there was no irritation noted on the skin. The Veteran was instructed to keep the dressing clean and dry for 48 hours. The condition upon leaving the clinic was noted as “stable.” The Veteran sought follow-up treatment on April 8, 2015. The VA provider noted that on examination the surgical wounds were clean, dry, and healing well. On April 28, 2015, the Veteran sought emergency treatment from a private facility. He told the treating physician that after returning home from having the stitches removed on April 8, 2015, he noticed that one stitch remained in his back. Notes show that the stitch was removed and the patient tolerated the removal well. He was instructed to follow up as needed and was discharged to home. The Veteran filed a claim in October 2015. In his claim, he wrote that the VA doctor who removed the skin polyp on his back inadvertently left a stitch in his back, causing an emergency room visit. In a separate statement submitted in October 2015, the Veteran noted that a permanent mark had been left and that he experienced stinging and itchiness. He also said that the sensation interfered with sleeping and that the itching was distracting because it was on a difficult to reach area of his body. He said he was forced to sleep in a position that caused relationship issues with his wife and ultimately affected his quality of life. The only medical opinion of record addressing this matter is that of Dr. D.P., a medical supervisor at a VA medical center. Initially, the Board acknowledges Dr. D.P.’s March 2016 finding that there was carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel in leaving a suture in the Veteran’s back. In this regard, Dr. D.P. found that follow-up treatment notes to the skin polyp removal did not document or address the removal or retention of the sutures in the Veteran’s back. Dr. D.P. wrote that if sutures had been removed, such should have been documented; alternatively, if sutures were remaining and intact, that also should have been documented. Dr. D.P. concluded that the retained suture went undetected and unnoticed until the Veteran’s visit to an emergency room in late April 2015. Further, he stated that such could have been anticipated and therefore preventative steps of standard care and caution to prevent such an oversight should have been taken. While identifying that VA’s oversight in leaving a suture in the Veteran following removal was indeed a result of carelessness, this case turns on whether because of this carelessness, additional disability exists. On this question, Dr. D.P. concluded that the residual disability was deemed to be quite low and possibly no worse than what the Veteran might have experienced with a normal and timely post-operative suture removal. He stated there was “little to no residual disability.” The agency of original jurisdiction (AOJ) denied the Veteran’s claim, finding that the Veteran incurred no additional disability. Although Dr. D.P. indicated that residual disability was deemed to be mild in severity, he did in fact acknowledge the presence of additional disability. Indeed, he specifically stated, “The residual disability at this point is deemed to be quite low . . . .” His subsequent statement that there is “little to no residual disability” is not conclusive enough to rule out the presence any additional disability, however severe. There is no requirement that additional disability reach a certain level of severity before it may be considered for an award under the provisions of 38 U.S.C. § 1151. Dr. D.P.’s suggestion that it could be possible that such additional disability would have existed whether or not the suture was timely removed is merely speculative, and does not weigh in favor of, or against the Veteran’s claim. As noted above, the Veteran has competently reported that his residual scar manifests in tenderness, itchiness, and burning. He related these symptoms to Dr. D.P. at his March 2016 examination. Although Dr. D.P. noted that the Veteran had not complained of these effects in prior assessments, the Board finds no reason to call into question the Veteran’s credibility in describing his scar-related symptoms. The Board accordingly finds that the evidence for and against the claim is at the very least in equipoise as to whether the Veteran suffered an additional disability in the form of a symptomatic scar due to VA’s failure to remove all sutures following his skin polyp removal. Dr. D.P. has stated that such additional disability (albeit low in severity) exists, and he provided adequate rationale in support of his conclusion that failure to remove the Veteran’s suture could have been avoided with proper documentation and record keeping. Insofar as it remains possible that the Veteran’s residual symptoms may have existed even if all sutures were removed at the correct time, there is no medical evidence of record confirming or refuting that finding. The Board will resolve all doubt in the Veteran’s favor, and the benefit sought on appeal is granted. REASONS FOR REMAND Service connection for obstructive sleep apnea is remanded. The Veteran has claimed entitlement to service connection for sleep impairment. During the course of this appeal, the Veteran has submitted evidence demonstrating that his sleep impairment has both a mental health component (insomnia, nightmares) and a physical component (obstructive sleep apnea). Importantly, with respect to the mental health component, VA has already recognized that sleep impairment due to insomnia and nightmares is in fact a symptom of his service-connected PTSD with depression and anxiety. In a July 2014 rating decision, the regional office (RO) specifically noted that a VA examination in February 2012 showed that sleep impairment is in fact a result of your PTSD. The Veteran has also submitted several medical opinions referencing the Veteran’s insomnia, nightmares and general trouble sleeping as a result of PTSD. The RO incorporated the symptom of PTSD-related sleep impairment into the Veteran’s PTSD rating. See the July 2014 Rating Decision Codesheet (noting that the Veteran’s service-connected PTSD with major depressive disorder and anxiety disorder encompassed the Veteran’s claim for sleep impairment). Thus, with respect to the Veteran’s service-connection claim for sleep impairment, the only issue remaining is whether VA may grant a separate service-connection award for his physical sleep disorder—obstructive sleep apnea. Indeed, at his September 2018 hearing before the Board, both the Veteran and his representative presented argument specific to the question of whether obstructive sleep apnea can be service-connected on either a direct or secondary basis. With this distinction in mind, the Board finds that an additional medical opinion must be obtained addressing the relationship, if any, between the Veteran’s sleep apnea and his service or service-connected disabilities. While the Veteran has submitted general statements from his physicians that identify sleep apnea as one of several disabilities that may be related to his PTSD, no opinion includes an actual medical explanation specifically indicating how PTSD causes or aggravates obstructive sleep apnea. In April 2015, the Veteran submitted an Internet article suggesting that there may be an association between sleep apnea and anxiety disorders. On remand, a VA physician with appropriate expertise should review this article, as well as the other evidence of record, and provide an opinion addressing the etiology of the Veteran’s sleep apnea disability. The matter is REMANDED for the following action: 1. Obtain a medical opinion from a physician with appropriate expertise addressing the etiology of the Veteran’s obstructive sleep apnea. The reviewing physician should review the Veteran’s claims file and provide a response to the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea had onset in, or is otherwise related to his period of service, to specifically include his in-service accident in which a power line fell on his car? b) Notwithstanding the above, is it at least as likely as not that the Veteran’s obstructive sleep apnea was caused or aggravated beyond its natural progression by his service-connected PTSD with major depressive disorder and generalized anxiety disorder? The examiner should consider and discuss the medical opinion evidence submitted by the Veteran’s physicians on the matter, as well as the Internet article submitted in April 2015 suggesting an association between sleep apnea and PTSD. All opinions provided should be supported by a medical rationale or explanation. If responses to the questions above cannot be provided without an in-person examination of the Veteran, such should be scheduled. 2. Readjudicate the appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel