Citation Nr: 19127367 Decision Date: 04/09/19 Archive Date: 04/09/19 DOCKET NO. 14-12 529 DATE: April 9, 2019 ORDER Entitlement to service connection for a left arm disability, claimed as left arm/finger numbness and trapezius strain is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a skin disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a left arm disability, claimed as left arm/finger numbness and trapezius strain began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the competent medical and other evidence of record is against a finding the Veteran developed a skin left disability due to VA medical treatment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left arm disability, claimed as left arm/finger numbness and trapezius strain have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a skin disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from February 1978 to February 1982. The Veteran testified at an October 2017 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for a left arm disability, claimed as left arm/finger numbness and trapezius strain The Veteran contends that he is entitled to service connection for his left arm disability. Specifically, he asserts that he sustained an injury to his left arm in service during a fight. As an initial matter, the Board notes that the Veteran’s service treatment records reveal that the Veteran was diagnosed with a ganglion cyst on his left forearm in 1978. However, the Veteran’s service treatment records are silent for any further treatment or symptoms of a left arm disability. Further, while the Veteran was treated for head trauma in 1980, no mention of an injury sustained to his left arm is of record. The Veteran’s post treatment records from 1988 to 1992 reveal complaints of numbness and twitching in his left shoulder and hand. However, no diagnosis was made. Further, x-rays of the Veteran’s left wrist were taken in 1989 which revealed no defects. As part of this claim, the Board recognizes the Veteran’s statements regarding his history of symptoms. In this regard, while the Veteran is not competent diagnose a left arm disability, as it may not be diagnosed by unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board notes that the Veteran testified during his October 2017 videoconference hearing that he has gotten treatment for the disabilities he sustained from his in-service injury since he left active duty service. However, the Board notes that the Veteran did not receive a diagnosis for his left arm disability until many years after he left service. Therefore, these statements prevent the Board from relying on his statements regarding a continuity of symptoms and continuity is not established based on the Veteran’s statements. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorder to active duty, despite his contentions to the contrary. The Veteran underwent a VA examination in September 2012 for his left arm and hand disability. The Veteran reported that he was kicked in the head while in service and experienced pain in his neck and left shoulder area. He further reported a limited use of his left arm during flare ups. The examiner diagnosed the Veteran with a trapezius strain. In regard to the Veteran’s hand, the examiner noted normal muscle strength, no ankylosis, and no arthritis. The Veteran underwent an additional VA examination for peripheral nerves in September 2012. The examiner diagnosed the Veteran with median neuropathy of the left upper extremity. Upon examination, the examiner opined that it is less likely as not that the Veterans left median neuropathy was incurred in service or related to a left arm condition shown during active duty. In support of his opinion, the examiner stated that the Veteran was noted to have sensory changes in the left forearm in service possibly associated with a ganglion cyst and currently his symptoms are different than that shown in service. Further, the examiner stated that the Veteran has sensory loss limited to the middle finger, he did not find a ganglion cyst or hard nodule on the left forearm, and there is no clear association between the forearm numbness and the middle finger numbness. The Board notes that although the Veteran is competent to report when lay-observable symptoms such as when his left arm disability began, as noted above, the evidence weighs against such reports. The Veteran has not submitted competent medical evidence that his current left arm disability was incurred during or due to service nor has any physician provided such a nexus. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran’s left arm disability to military service. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). 2. Entitlement to compensation under 38 U.S.C. 1151 for a skin disability The Veteran contends that he suffered an injury to his penis when undergoing surgery for a stomach condition. Specifically, he asserts that a hole was cut into the top of his penis and he began experiencing blisters in that area. The Board notes that upon review of the Veteran’s service treatment records, a diagnosis of an ulcer on his penis was noted in June 1966. A review of the Veteran’s post service medical records show that the Veteran developed blisters on his penis in 1984 and was told he had HSV during a visit to the Denver clinic. During a physical examination in August 1996, the treating physician noted that the Veteran had a history of genital warts. Under the current provisions of 38 U.S.C. § 1151 compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and-(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S.C. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that (1) Care, treatment, or examination. 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, medical or surgical treatment, or examination caused the veteran’s additional disability or death (as explained in paragraph (c) of this section); 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). At his October 2017 Board hearing, the Veteran testified that his skin disability was caused after a hole was cut into the top of his penis when he underwent surgery for his stomach at Jackson Memorial Hospital. He testified that he started having pus filled blisters within five days of the injury. However, the Board notes that the Veteran’s medical treatment records do not contain a diagnosis of a skin disability following treatment at Jackson Memorial Hospital. The Veteran underwent a VA examination for his skin condition in September 2012. The examiner noted the Veterans history of treatment for venereal warts in 1980 while in service and his diagnosis of pemphigoid bullous in 2011. The examiner opined that it was less likely than not that his skin disability was incurred in or a result of his military service. In support of his opinion, the examiner stated that the Veteran was diagnosed with venereal warts during military service and his service medical records are silent for diagnosis of pemphigoid bullous. In conclusion, the Board notes that the Veteran’s medical treatment records show that the Veteran consistently complained of a skin condition prior to his report of a hole being cut into the top of his penis. Therefore, the evidence fails to show a current skin disability was either the result of VA fault or an event not reasonably foreseeable. The Board considered the Veteran’s statements made in support of his claims. In certain instances, lay statements may serve to support findings related to the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377. However, the Veteran is not competent to state that any residual symptoms or problems are etiologically related to any VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical etiological opinion. In view of the foregoing, the Board finds that the aforementioned VA examiners’ opinions are adequate, persuasive, and entitled to significant probative value in the instant case. Consequently, the preponderance of the competent medical and other evidence of record is against a finding the Veteran developed a skin disability due to VA medical treatment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, the benefit sought on appeal must be denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel