Citation Nr: 19150511 Decision Date: 06/27/19 Archive Date: 06/27/19 DOCKET NO. 16-32 278 DATE: June 27, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 (2012) for liver damage is denied. Entitlement to compensation under 38 U.S.C. § 1151 for AC joint arthritis of the left shoulder is denied. Entitlement to compensation under 38 U.S.C. § 1151 for carpal tunnel syndrome of the right wrist is denied. Entitlement to compensation under 38 U.S.C. § 1151 for carpal tunnel syndrome of the left wrist is denied. Entitlement to compensation under 38 U.S.C. § 1151 for degenerative disease of the left knee is denied. Entitlement to compensation under 38 U.S.C. § 1151 for degenerative changes of the right knee is denied. Entitlement to compensation under 38 U.S.C. § 1151 for chronic cervical strain with radiculopathy/neuropathy is denied. Entitlement to compensation under 38 U.S.C. § 1151 for lumbar strain is denied. Entitlement to compensation under 38 U.S.C. § 1151 for allergic rhinitis is denied. Entitlement to compensation under 38 U.S.C. § 1151 for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for prurigo is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has liver damage that is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 2. The preponderance of the evidence is against finding that any additional left shoulder disability is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 3. The preponderance of the evidence is against finding that any additional carpal tunnel syndrome of the right wrist is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 4. The preponderance of the evidence is against finding that any additional carpal tunnel syndrome of the left wrist is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 5. The preponderance of the evidence is against finding that any additional left knee disability is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 6. The preponderance of the evidence is against finding that any additional right knee disability the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 7. The preponderance of the evidence is against finding that any additional cervical spine disability with radiculopathy/neuropathy is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 8. The preponderance of the evidence is against finding that any additional lumbar spine disability is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 9. The preponderance of the evidence is against finding that any additional allergic rhinitis is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. 10. The preponderance of the evidence is against finding that any additional psychiatric disability is the result of VA negligence, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment. CONCLUSIONS OF LAW 1. The criteria for compensation pursuant to 38 U.S.C. § 1151 for liver damage have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). 2. The criteria for compensation pursuant to 38 U.S.C. § 1151 for AC joint arthritis of the left shoulder have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 3. The criteria for compensation pursuant to 38 U.S.C. § 1151 for carpal tunnel syndrome of the right wrist have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 4. The criteria for compensation pursuant to 38 U.S.C. § 1151 for carpal tunnel syndrome of the left wrist have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 5. The criteria for compensation pursuant to 38 U.S.C. § 1151 for degenerative disease of the left knee have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 6. The criteria for compensation pursuant to 38 U.S.C. § 1151 for degenerative changes of the right knee have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 7. The criteria for compensation pursuant to 38 U.S.C. § 1151 for chronic cervical strain with radiculopathy/neuropathy have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 8. The criteria for compensation pursuant to 38 U.S.C. § 1151 for lumbar strain have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 9. The criteria for compensation pursuant to 38 U.S.C. § 1151 for allergic rhinitis have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 10. The criteria for compensation pursuant to 38 U.S.C. § 1151 for PTSD have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from July 1972 to September 1974. These matters are on appeal from a June 2014 rating decision. The Board notes that the Veteran has contended in multiple statements that these claims were granted in a February 2014 rating decision and then retroactively denied. In the February 2014 rating decision, VA granted entitlement to a nonservice-connected pension and indicated that a decision with regard to his 38 U.S.C. § 1151 claims was “deferred.” “Deferred” is defined as “withheld for or until a stated time.” Merriam-Webster’s Collegiate Dictionary 326 (11th ed. 2012). In the February 2014 decision, instead of granting or denying the Veteran’s 38 U.S.C. § 1151 claims, VA opted to delay judgment to a future date. VA then denied those claims in the June 2014 rating decision currently on appeal. 1151 Eligibility Under 38 U.S.C. § 1151, compensation is awarded for a “qualifying additional disability” in the same manner as if such additional disability or death were service connected. 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). To be considered a “qualifying additional disability” in these circumstances, a disability must meet two criteria. First, it must not be the result of the Veteran’s willful misconduct. Second, the disability must have been either: (a) caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either (i) 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 (ii) an event not reasonably foreseeable; or (b) proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. Id. To determine whether the Veteran had an additional disability, VA compares the condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the condition after such treatment has stopped. 38 C.F.R. § 3.361 (b). 1. Liver Damage In an August 2013 statement, the Veteran contended that Acetaminophen prescribed to him by VA treatment providers contributed to “potential” liver damage. The Veteran’s VA and private treatment records contain no diagnosis of a liver disability and the Veteran has never contended that he has had a liver disability, as opposed to the potential for damage, at any point during the period on appeal. In his May 2016 substantive appeal (VA Form 9), the Veteran clarified that he had not intended to submit a claim for liver damage. The Board therefore finds that it is less likely than not that the Veteran has had a liver disability during the period on appeal. By definition, when there is no disability, there must also be no additional disability. Because there is no additional disability, compensation under 38 U.S.C. § 1151 is denied. 2. AC Joint Arthritis of the Left Shoulder 3. Carpal Tunnel Syndrome of the Right Wrist 4. Carpal Tunnel Syndrome of the Left Wrist 5. Degenerative Disease of the Left Knee 6. Degenerative Changes of the Right Knee 7. Chronic Cervical Strain with Radiculopathy/Neuropathy 8. Lumbar Strain 9. Allergic Rhinitis 10. PTSD The Board has combined its analysis of the above nine claims because they all rest on the same contention: that the Veteran received a steroid injection to the incorrect cervical spine disc in May 2008. The Veteran’s VA treatment records from May 2008 include an operative note from the physician who performed the steroid injection, who described it as an intralaminar epidural steroid injection at C5-6. Records also include the Veteran’s informed consent to that procedure. A November 2008 VA treatment record describes the Veteran’s cervical epidural steroid injection as at C4-C5 but then refers to a “repeat CESI at C5-C6 in midline on December 8, 2008.” Although the physician who performed the May 2008 injection acknowledged receipt of this record, the record was written by a different physician. A similar sequence of events occurred with regard to the December 2008 injection. The operative note from the physician who performed the May 2008 and December 2008 injections again described it as an intralaminar epidural steroid injection at C5-6. Records again include the Veteran’s informed consent, but this time the record indicates his consent generally to a cervical epidural steroid injection without describing a specific disc. However, a September 2009 VA treatment record written by an anesthesiology resident and an October 2009 VA treatment record written by a certified hand therapist refer to that injection as at C4-5. In multiple statements, including an August 2013 statement, the Veteran has expressed his belief that the November 2008 record is a confirmation that the May 2008 injection was actually to the C4-5 disc instead of the C5-6 disc and that the September 2009 treatment record listed the December 2008 injection as to the C4-5 disc to help “conceal the error” from May 2008. Following this line of reasoning, the Veteran has indicated that he did not consent to an injection to the wrong disc. In his statements, the Veteran has also expressed his belief that the reference to the C4-5 disc in the September 2009 record caused additional errors in his treatment and the aggravation of all of the above-listed disabilities. The Board finds that the May 2008 and December 2008 operative reports, which were contemporaneous medical evidence written by the physician who performed the procedures, are of greater probative value than records written by other treatment providers months after the fact. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board also notes that, even in the November 2008 record that referenced an injection to C4-C5, the record went on to refer to a “repeat” injection “at C5-C6,” which indicates that one of the two contradictory statements in that record reflects a typographical error. For these reasons, the Board finds that any references to the May 2008 or December 2008 steroid injections being to the C4-5 disc, as opposed to the C5-6 disc, likely reflect typographical errors and the injections were, as indicated in the operative reports, to the C5-6 disc. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran has provided his lay opinion in support of his claim, in this case, he is not shown to possess the level of experience or training needed to provide a competent opinion as to which disc received the injections. To the extent that his lay statements can be construed to include the contention that a typographical error as to which disc received the injection aggravated the above-referenced disabilities by altering his treatment, he is also not shown to possess the level of experience or training needed to provide competent opinions as to those issues. Thus, to the extent that the lay statements express opinions that he received a steroid injection to the wrong cervical disc or that the above-referenced disabilities were aggravated by the typographical error in his treatment records, they are not competent medical opinions and they cannot be assigned any probative weight. Moreover, the record contains no competent evidence or plausible argument that it is possible for a typographical error in treatment records as to which specific cervical disc received a steroid injection to cause additional disability with regard to the AC joint arthritis of the left shoulder, carpal tunnel syndrome of the right or left wrist, degenerative disease of the left knee, degenerative changes of the right knee, chronic cervical strain with radiculopathy/neuropathy, lumbar strain, allergic rhinitis, or PTSD. Because the Veteran’s central contention, that he received a steroid injection to the incorrect disc, is based on a misunderstanding of typographical errors in his treatment records, and he has not demonstrated that said typographical errors could aggravate the above-referenced disabilities, it is not necessary for the Board to determine whether additional disability is present. The Board acknowledges the Veteran’s contention that the May 2008 steroid injection was done with a lack of informed consent, but that contention again rests on the premise that the injection was to the incorrect disc. Because the Board finds that the May 2008 injection was to the C5-6 disc, which was the procedure to which the Veteran gave informed consent, the regulations pertaining to events not reasonably foreseeable and informed consent do not apply. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for prurigo is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that “high doses of Acetaminophen” contributed to his prurigo. The Veteran was diagnosed with prurigo during a November 2009 VA treatment appointment; the treatment provider opined that the potential causes “are broad but may be due to liver problems, other internal problems, psychogenic and meds.” The Veteran reported that his symptoms were worse after taking medication. At the time of the diagnosis, the Veteran’s prescribed medications included Acetaminophen with Codeine. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and a medical opinion is necessary. The matter is REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s prurigo. The claims file must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide opinions as to the following: a. Whether it is at least as likely as not that the Veteran has prurigo that is proximately due to or the result of (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (2) an event not reasonably foreseeable. b. Whether it is at least as likely as not that the Veteran has prurigo that was aggravated (worsened beyond its natural progression) by (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or (2) an event not reasonably foreseeable. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: a. VA treatment records from 2009 listing Acetaminophen with Codeine as among the Veteran’s medications. b. The November 2009 VA treatment record diagnosing prurigo, which included an opinion that the causes might include medication and the Veteran’s contention that his symptoms worsened after taking medication. c. The Veteran’s contention in an August 2013 statement that “high doses of Acetaminophen” contributed to his prurigo. The rationale for any opinion expressed should be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. (Continued on the next page)   2. Readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ryan Frank, 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.