Citation Nr: 19150243 Decision Date: 06/27/19 Archive Date: 06/27/19 DOCKET NO. 13-20 520 DATE: June 27, 2019 ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for left upper extremity neuropathy, resulting from a scalene block administered in connection with left shoulder surgery, is denied. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for left sided cervicogenic headache pain/neck pain/headaches, resulting from a scalene block administered in connection with left shoulder surgery, is denied. FINDINGS OF FACT 1. The weight of the probative evidence of record is against finding the Veteran’s left upper extremity neuropathy, resulting from a scalene block administered in connection with left shoulder surgery, was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. 2. The weight of the probative evidence of record is against finding the Veteran's left sided cervicogenic headache pain/neck pain/headaches, resulting from a scalene block administered in connection with left shoulder surgery, was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for left upper extremity neuropathy, resulting from a scalene block administered in connection with left shoulder surgery, claimed to have been caused by the Department of Veterans' Affairs have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.159, 3.361. 2. The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for left sided cervicogenic headache pain/neck pain/headaches, resulting from a scalene block administered in connection with left shoulder surgery, claimed to have been caused by the Department of Veterans' Affairs have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from May 1975 to May 1978. This case was previously before the Board of Veterans’ Appeals (Board) from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge during an August 2017 hearing. In December 2017, the Board remanded the matter to the AOJ for further development. The Board finds the AOJ has substantially complied with the remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran’s claim for migraine headaches was withdrawn (12/19/2017 BVA Decision, p. 2), however, the Veteran’s claim for “[p]ain in the neck that goes clear to the head” (12/06/2010 VA 21-526 Veterans Application for Compensation or Pension), also described in the record as “headache” or “neck pain” is claimed as a residual from his October 2010 VA surgery, has not been withdrawn, and remains on appeal. The Veteran has claimed that he is entitled to compensation benefits pursuant to 38 U.S.C. § 1151, for residuals “of numbness in left shoulder clear to fingers [and] [p]ain in the neck that goes clear to the head” (12/06/2010 VA 21-526 Veterans Application for Compensation or Pension, p. 1) due to the improper administration of a scalene block provided in connection with left shoulder surgery at a VA facility in October 2010. The Veteran recalls that a younger, presumably less experienced medical professional, accompanied the anesthesiologist to administer the scalene block. The Veteran reported that the younger professional received instruction from the anesthesiologist. When the younger professional attempted to place the block, he had trouble finding the correct location, requiring the reinsertion of the needle nine to twelve times before the block took effect. During the multiple insertions, the Veteran recalls involuntary movement of his arm; a sensation of his diaphragm "jumping"; and a sensation of his lung(s) “twitching.” Post-surgery, the Veteran noticed he was bruised at the injection site, and he experienced a severe headache from his shoulder, and numbness of left anterior forearm and 3rd, 4th and 5th digits. The Veteran visited the emergency room for these complaints (10/27/2011 VA Examination, p. 16; 5/17/2011 C&P Examination, p. 5; 12/15/2010 Medical Treatment Record - Government Facility, p. 31; 8/23/2017 Hearing Transcript, pgs. 5-6; 12/02/2017 Correspondence, p. 4). The Veteran testified during his hearing that he continues to have the headaches, however the tingle and a numbness [radiating] into [his] fingers has dissipated over the years, although “there’s a little bit [of numbness] left on the tip” (8/23/2017 Hearing Transcript p. 10). During the VA examination of September 2018, the Veteran reported the tingling symptom had resolved (9/28/2018 C&P Examination, p. 6). 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); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) 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 body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361 (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Thus, 38 U.S.C. § 1151 contains two causation elements: an additional disability must not only be "caused by" the hospital care or medical treatment received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." 38 U.S.C. § 1151 (a)(1). Left Upper Extremity Although resolved as of September 2018 (9/28/2018 C&P Exam, p. 1) the evidence of record supports that the Veteran sustained left upper extremity neuropathy post rotator cuff surgery in October 2010. The Board finds however, that the disability, while a result of the pre-surgical nerve block, was not the fault of the VA, nor was it proximately caused by an unforeseen event. The evidence of record regarding the Veteran’s left upper extremity neuropathy does include a May 2011 medical opinion that the Veteran’s neurological condition of the left upper extremity is at least as likely as not (50 percent probability) caused by or a result of rotator cuff surgery performed at the [VA facility]. This opinion was based on the rationale that the Veteran’s neurological complaints did not start until after the rotator cuff surgery, noting that the Veteran presented in the ER at the same facility with neck pain and migraine headache (emphasis added) on 10-21-10. The Veteran states that the numbness in his fingers also began after this rotator cuff repair. (5/17/2011 C&P Examination, p. 9). While competent and reliable, the Board finds this opinion to be of less probative weight than the contrary June 2012 opinion provided by a surgeon. The June 2012 surgeon examiner opined that the Veteran’s October 2010 regional scalene block met the standard of care, the Veterans residual complaints were predictable and not an unforeseen development, and any left upper extremity neuropathy “is not nexus connected to the regional scalene block” (4/12/2010 Medical Treatment Record - Non-Government Facility, p. 3). The June 2012 examiner specifically disagreed with the May 2011 opinion that the Veteran's left upper extremity neuropathy was at least as likely as not caused by, or a result of the Veteran’s October 2010 rotator cuff surgery. The examiner opined that the May 2011 opinion was “clearly based on the history provided by the Veteran that his left upper extremity (LUE) "numbness in his fingers began (implied immediately or shortly) after this [rotator cuff (RTC)] repair" which is simply not supported by the records. The LUE neuropathy complaints were not made till 6 months after the RTC surgery (and therefore cannot be connected) to the scalene block or RTC surgical repair” (4/12/2010 Medical Treatment Record - Non-Government Facility, p. 4). It was explained that, if attributable to the scalene block, the neuropathic symptoms would have been immediate; it was medically impossible for the symptoms to have a delayed onset. During his hearing, the Veteran provided journal and internet articles pertaining to scalene blocks, and potential side effects. The Board notes the highlights made by the Veteran and that the articles support the general assertion that “needle trauma may cause neuropathy after nerve blockade” (12/02/2017 Correspondence, p. 74). The articles provide general information in this regard. However, they have not been assigned significant probative weight by the Board and are not persuasive one way or another regarding the Veteran’s claim. The Board finds the June 2012 examiner opinion to be the most probative evidence of record on the question of nexus. The reasoning provided is found to be the most detailed and is based on a better understanding of the medical facts of record than that of the opposing opinion. Moreover, the Board finds the neuropathy experienced by the Veteran was a foreseeable outcome associated with the nerve block, which has since resolved, and is not compensable under 38 U.S.C. § 1151. The Veteran believes that his currently claimed left arm neuropathy is due to VA treatment. However, he lacks the requisite knowledge or medical expertise to opine on this complex question. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the evidence of record preponderates against finding that the Veteran’s left upper extremity neuropathy resulting from the scalene block administered in connection with his October 2010 left shoulder surgery was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable, the Veteran’s claim for entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for left upper extremity neuropathy is denied. Left sided cervicogenic headache pain/neck pain/headaches The Veteran contends that an additional disability, specifically left sided cervicogenic headache pain/neck pain/headaches, began after the Veteran’s October 2010 rotator cuff surgery. The Veteran provided a detailed statement regarding the circumstances surrounding the administration of the scalene block as discussed above, with an explanation that after surgery, the pain levels that were described as “2” or “none” were referencing his shoulder, not the headache pain that the Veteran continues to experience. He stated “since [the date of the surgery], I now live with a headache which resides in the left side of my head and neck and simple things like lying down on a pillow, quick turn of my head, or looking upward, rubbing my lower left neck, wear straps like for my c-pap machine and so on, can set this headache off from say a ‘2’ within a moment or gradually over minutes to a ‘8’” (12/02/2017 Correspondence, p. 6). The Veteran’s complaints regarding this pain began in October 2010, and have been consistent throughout the record, up to and including his statement received by the VA in December 2017. While the Veteran is competent to provide evidence regarding his pain and the circumstances surrounding the procedure from his perspective, he is not competent to provide evidence regarding the internal medical process associated with his pain. As such, the Board finds the Veteran's statements, to the extent that they purport to diagnosed the cause, do not constitute probative evidence. During his hearing, the Veteran provided the Board with a July 2014 medical opinion from a private anesthesiologist. A waiver of RO consideration is of record (5/5/2019 Correspondence). The anesthesiologist provided a medical opinion that “the attempted nerve block in 2009 (sic.) did not cause [the Veteran’s] cervicalgia but the attempted block certainly caused a significant worsening of his neck pain and muscle spasm ... I feel the procedure resulted in an injury but I cannot be sure of the mechanism ... [The Veteran] was consistent in anatomic location and description of the pain for over 3 years after the attempted nerve block. His pain following the nerve block was different than the headache pain and cervicalgia for which I treated him for well over ten (10) years.” The anesthesiologist acknowledged in his opinion that he had not reviewed any procedure note(s), and that his opinion was based solely upon the Veteran’s history and examination of the pain location. (4/02/2018 Medical Treatment Record - Non-Government Facility). Although in favor of the Veteran’s claim, the July 2014 medical opinion was not based on a review of the record or the October 2010 procedure notes. As such, it is of less probative weight than other medical opinions of record. Also in favor of the Veterans claim is the September 2018 VA examiner opinion that “it is at least as likely as not that [the Veteran’s] ongoing left sided headaches, which are present on a daily basis, were caused by the scalene block. The rationale for this opinion is the documentation provided by multiple providers following the block (including: Dr. E., Neurology, who in spite of his somewhat negative opinion notes these left sided headaches developed after the reported scalene block and that his shoulder and neck spasms may have been aggravated; the documentation of multiple ER visits for headaches following the block; Dr. O.'s referral for ER visits stating "the continuing issue with his migraine may well have been related to nerve blocks performed in pre-op for his last shoulder surgery [in October 2010]"; Dr. O. 's neurology referral 11/19/10 indicates migraines have been more intense and frequent since procedure. Headache no longer responding to Imitrex (which suggests a change in nature/etiology of the headache); Neurology consult Dr. K. 's diagnosis of "pain that came on after a shoulder surgery... persistent trigger point in the neck)” (9/28/2018 C&P Examination, p. 2). While competent, the September 2018 opinion does not indicate that the Veteran’s headaches were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA during the October 2010 procedure or that an unforeseeable event had occurred, resulting in the headaches, therefore cannot be relied upon to establish entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151. In contrast and weighing against the Veteran’s claim is the December 2010 opinion by the Veteran’s private doctor stating that the Veteran’s post October 2010 headaches “tend to be localized to the left side at the base of his skull,” and “[i]n my opinion, these [headaches] are in no way related to his scalene block other than the fact that the shoulder surgery and the scalene block may have aggravated muscle spasms which were already present in his neck and in his shoulder. There is no way that he could have nerve damage to this area since there is no nerve that goes from the base of his skull into his shoulder. This injury was pre-existing” (1/10/2011 Medical Treatment Record - Non-Government Facility, p. 4). The December 2011 medical opinion of record provided “[e]xtensive review of the medical records available [did] not show any evidence of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination” with regard to the [October 2010] block being the cause of the Veteran’s headaches (4/12/2012 C&P Examination, p. 1). The June 2012 examiner opined after a review of the record, that the October 2010 regional scalene block met standard of care and had no complications whatsoever. With regard to the Veteran’s headaches, the examiner noted that the Veteran had a long-standing, chronic, mixed headache condition, with clear etiologies and/or manifestations of tension, migraine, and cervicogenic headaches, in addition to a history of myofascial pain syndrome, involving the neck muscles, especially those at the base of his skull. The Veteran’s myofascial pain syndrome manifested as chronic neck and base of the skull (head) painful muscle spasms and had specific neck muscle "triggerpoint" spots that would, when flared, cause neck, shoulder pain and be associated with headaches. The examiner opined that the Veteran’s myofascial pain syndrome was linked to his headaches and that a flare of myofascial pain syndrome would cause a flare up [of his headache] condition. The examiner noted that this link was well-established by both the private and VA treating providers who repeatedly treated the headache condition with myofascial pain syndrome trigger point injections. The June 2012 examiner emphasized that prior to the October 2010 surgery, physician notes indicated that “nothing (i.e., no combination of medications or trigger point injections) [gave the Veteran] consistent relief” stating that prior to the Veteran’s rotator cuff surgery, the Veteran’s myofascial pain syndrome and headache conditions would have been considered intractable (incurable and recurrent). The June 2012 examiner also noted that pre-surgical records clearly documented that after the Veteran's two private shoulder surgeries, he sustained marked and prolonged flares of myofascial pain syndrome and headaches. The examiner ultimately concluded that the Veteran's post October 2010 rotator cuff surgery flare of his myofascial pain syndrome and headache conditions was “perfectly predicable and was not an unforeseen development. In fact, a flare of the Veteran's myofascial pain syndrome and headache conditions post [surgery] would be considered a natural history for this patient” (4/12/2010 Medical Treatment Record - Non-Government Facility). The Board finds the June 2012 medical opinion to be competent, credible and highly probative. The examiner provided an encompassing review of the Veteran's medical history, specifically comparing the nature and severity of the Veteran’s pre- and post- October 2010 surgery headache history. The examiner’s rationale for his opinions was more detailed and grounded in the Veteran’s medical history than the other opinions of record. Taking the December 2010, December 2011, and June 2012 medical opinions together, the Board finds the weight of the evidence indicates that the Veteran had intractable headaches prior to the October 2010 surgery, the scalene block was administered within the standard of care, and the Veteran’s post-surgical headaches were predicable and not an unforeseen development. Evidence merely showing that the headaches were an additional disability arising from the scalene block is not sufficient to grant the claim here; the requirements of showing fault or unforseeability have not been met. As the Veteran’s headaches were not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the rotator cuff surgery performed by the VA or an event not reasonably foreseeable, the Veteran’s claim for entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for left sided cervicogenic headache pain/neck pain/headaches resulting from a scalene block administered in connection with left shoulder surgery is denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.