Citation Nr: 19144618 Decision Date: 06/11/19 Archive Date: 06/10/19 DOCKET NO. 06-36 975 DATE: June 11, 2019 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a left shoulder nerve conduction study is remanded. REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a left shoulder nerve conduction study is remanded. The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 as he experienced additional disability associated with his left arm and left hand and fingers (i.e., pain and numbness) after undergoing an electromyography (EMG) procedure on his left shoulder. The Board observes that in November 2002, the Phoenix, Arizona VA Medical Center referred the Veteran to a non-VA, fee-based physician for an EMG test of the left upper extremity. Under applicable law, when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.358(a) (2018). To be awarded compensation under section 1151, the veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; see also VAOPGCPREC 40-97, 63 Fed. Reg. 31,262 (1998). Per 38 U.S.C. § 1151(a)(1), VA’s medical negligence statute under section 1151 extends to “the disability or death 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.” According to 38 U.S.C. § 1701(3), the term “facilities of the Department” (meaning VA facilities) is defined as: (A) facilities over which the Secretary has direct jurisdiction; (B) Government facilities for which the Secretary contracts; and (C) public or private facilities at which the Secretary provides recreational activities for patients receiving care under section 1710 of this title. According to 38 U.S.C. § 170(4), the term “non-Department facilities” means facilities other than Department facilities. In this instance, the Veteran had a procedure performed at a private medical facility by a private physician. Therefore, under the law as written he previously would not have been eligible for compensation under section 1151. (As the claimed incident does not fall within the exception under the law indicated at 38 U.S.C. § 1701(6)(E), for noninstitutional extended care services at a private facility where furnished by VA by contractual arrangement.) However, since the Veteran filed his claim, there has been precedential case law issued from the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), the holding in Ollis v. Shulkin, 857 F.3d 1338 (2017), which did not change the language of the law on medical negligence actions for treatment consequences performed by a third-party provider or at a non-VA facility, but significantly expanded the definition of “proximate causation” for claims under 38 C.F.R. § 1151. To establish a section 1151 claim, an additional disability must have been both actually caused, and proximately caused by qualifying treatment. One means to show proximate causation is negligence. See generally, 38 C.F.R. § 3.361(d)(1). The second way is to show that disability originated from “an event not reasonably foreseeable.” See 38 C.F.R. § 3.361(d)(2). More specifically, the Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under 38 U.S.C. § 1151(a)(1)(B), 38 U.S.C. § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Court further held that 38 U.S.C. § 1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. In this case, the November 2002 VA examining physician at the Phoenix, Arizona VA Medical Center (VAMC) requested that the Veteran have an EMG test conducted and he was referred by VA on a fee basis to a private physician who performed the procedure. A November 2002 VA examination indicates that the examiner recommended that he have “an electromyelogram of the left upper extremity and, if possible, the area of the symptoms.” Moreover, the November 2002 report documenting the results of the subject EMG states that the “referring physician” is “VAMC/Ratings,” and a December 2003 letter by the physician who performed the EMG procedure stated, “…I test ratings patients for the VA only. I do not treat or render final[] diagnoses.” Based on the foregoing, the Board finds that the subject November 2002 EMG test was proximately due to the November 2002 VA examiner’s request. Accordingly, the remaining questions are whether there is an additional disability, as claimed by the Veteran, and whether any such disability was proximately caused by an unforeseeable event associated with the November 2002 EMG test. Regarding the first prong of the analysis, to determine whether additional disability exists, the veteran’s physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the veteran’s condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran’s additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). Further, the “proximate cause” of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable medical provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361(d)(2). Here, the Veteran contends that the subject November 2002 EMG test resulted in additional disability with the attendant manifestation of an increase in symptoms of left shoulder pain and numbness in his left arm and hand. However, the evidence of record is insufficient on which to determine whether his claimed additional disability was actually and proximately caused by the November 2002 EMG test. Although the Veteran was afforded VA examinations which discussed a possible additional disability from the November 2002 EMG test, the Board finds that the examiners did not address all relevant evidence of record in rendering an opinion, and the examinations are thus inadequate on which to decide the instant appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that if VA provides the Veteran with an examination in a service connection claim, the examination must be adequate). In a March 2010 VA examination, the examiner opined that it was less likely than not that additional disability of the Veteran’s left arm, hand, and fingers was caused by or a result of the November 2002 EMG test. The examiner noted that he had an MRI performed on his left shoulder in October 2005 due to persistent left shoulder pain, which revealed a high-grade partial tear of the supraspinatus tendon (rotator cuff tear) that he subsequently had surgically repaired. The examiner stated that the November 2002 EMG test was done because of persistent left scapula pain and numbness of the left hand, and the results were consistent with ulnar neuropathy at the elbow. The examiner indicated that the EMG test report and EMG test referral request documented pain in the left shoulder area even prior to the test. The examiner indicated that the Veteran most likely had an undiagnosed rotator cuff tear prior to the EMG test and it was only discovered when the MRI of his left shoulder was done. The examiner stated that the EMG test was unlikely to have aggravated the left shoulder (if there had been a rotator cuff tear at the time of the EMG test), as the voluntary strength needed when performing the test is a few pounds of force on arm abduction when testing for the supraspinatus muscle. The examiner concluded that the ulnar neuropathy at the elbow is a common entrapment neuropathy in the general population and is not due to the nerve conduction or EMG test. A December 2010 VA examination indicated that the Veteran was being evaluated for a “possible service increase” of his left shoulder. The examiner noted that he also contended that his left shoulder issue resulted in hand dysfunction. The examiner opined that, “[a]fter a thorough review of the c-file and detailed [history] and physical of the Veteran, the Veteran’s shoulder condition is unrelated to the service.” The examiner stated that there was no indication in the claims file that the Veteran injured his shoulder in a traumatic way to result in the dysfunction he exhibited. The examiner further indicated that there was no relationship between the Veteran’s shoulder condition and his hand dysfunction or any relationship between the EMG test and the resultant dysfunction. The examiner noted that the Veteran’s surgery was to repair his rotator cuff tear and likely to be age related rather than service connected due to a lack of injury while in the service. The Board notes that the March 2010 examiner failed to address any of the Veteran’s statements of record which indicated that there was an immediate and persistent increase in the severity of his symptoms in his left shoulder, arm, and hand after the November 2002 EMG test. Further, the Veteran has been service connected for thoraco-scapular tendonitis of the left shoulder since June 1971, and the fact that he had pain prior to the November 2002 EMG test is not at all unusual and is presumed under the criteria for a 10 percent rating. While the examiner did indicate that the small amount of force necessary for arm abduction during testing likely did not aggravate a pre-existing rotator cuff tear, the examiner did not address the Veteran’s left shoulder pain increase from the point of irritation of a nerve during the study, as theorized in a March 2006 private treatment record. The December 2010 examiner also failed to address any of the Veteran’s statements of record. Additionally, the examiner operated under the presumption that his left shoulder disability was not already service-connected, which is contrary to his service-connected status for his left shoulder disability since June 1971. Moreover, the examiner’s conclusion that his left shoulder pain was unrelated to the November 2002 EMG lacked any supporting discussion, and the examiner merely stated that the Veteran’s left shoulder surgery was to repair his rotator cuff and likely age related. In the November 2002 VA examination, the Veteran indicated that he experienced left scapular pain, which began during his active duty service and “has never really relented to any degree.” The examiner noted that after separation from service, he was forced to change careers because he could no longer perform the frequent lifting necessary for his prior occupation in the grocery business due to pain. He stated that the pain was at the mid-left medial scapular border, where it constantly felt numb and hurt with a certain range of motion of the shoulder, particularly overhead motion. He indicated that he could not really throw a ball and it hurt him to reach directly above his head, hold his arm up, or hold an object. He noted that the area was very crepitant and popped and snapped. The examiner documented pain and some limitation of motion for his left shoulder, as well as crepitus. The examiner also noted that the Veteran reported some numbness in the fingers on his left hand over the prior ten years, but he did not indicate any neck complaints, which could relate his scapular pain to cervical radiculopathy. The examiner concluded that his scapular border pain was consistent with inflammation, most likely musculotendinous inflammation or tendinitis. The examiner indicated, after reviewing the results of the associated November 2002 EMG test and an x-ray of his cervical spine, that the Veteran had thoraco-scapular tendinitis, and noted that it was possible that in the future some relation to the Veteran’s nerves could be found, but not now. In a letter dated December 2002, the Veteran wrote to the physician who conducted the November 2002 EMG test and indicated that on the day following the test, and every day since, he experienced a deep, aching feeling in his shoulder that continued day and night. He stated that it was not a severe pain, but a very deep ache that was especially troublesome when doing activities with his left arm like driving and holding the steering wheel, typing, or any type of physical motion. He noted that the aching also made it difficult for him to get a full night’s sleep. He indicated that taking aspirin and resting did not seem to help. In a December 2003 letter to the VA physician at the Phoenix, Arizona VAMC who conducted the November 2002 examination, the Veteran indicated that the physician referred him for an EMG test on his left shoulder, arm, and hand in November 2002. He stated that the result of the appointment was the re-establishment of his full disability and pain and aching. He claimed that the aching affected his daily life and sought an opinion on what caused his symptoms. A March 2006 private treatment record indicated that the Veteran underwent a nerve conduction study and reported an immediate and severe increase in pain and numbness in his left upper extremity, which had not improved. The treating physician stated that his symptoms were consistent with a nerve conduction study report of 2002 showing cubital tunnel syndrome and that he may have had irritation to the ulnar nerve at the time of the study. The physician noted that confirmation of the condition would require evaluation by a neurologist and another nerve conduction study. In a November 2006 statement, the Veteran indicated that he experienced increased pain and aching immediately after the subject November 2002 EMG test and that the symptoms continued to the time of his writing the letter. He stated that he subsequently had another EMG test conducted, which yielded similar ulnar results but no added or increased pain in any location. He opined that the lack of additional pain and aching after the later EMG test indicated that there was something flawed in the November 2002 EMG test. He detailed that his left shoulder disability affected his ability to perform routine activities, such as driving, and noted that his shoulder condition became worse approximately three years before, to the point that he could not raise his left arm at all and could not lift any weight above his waist or shoulders. At his December 2009 Board hearing, the Veteran testified that prior to the November 2002 EMG test, he experienced aching in his shoulder and limited range of motion. He indicated that there was no severe pain, just a dull, steady ache and a “snapping issue.” He stated that shortly after undergoing the EMG test, his shoulder started aching and the next day was “really, really troublesome.” He claimed that he went to his private doctor who suggested physical therapy, but after two sessions the pain was so severe that he discontinued the therapy. He indicated that his biggest problem was with driving, and that he could not hold his left arm in a position which would alleviate the accompanying pain and aching. He noted that prior to the November 2002 EMG test, he did not have any problems with his left shoulder aching while he drove but since the EMG test he consistently experienced aching and pain. He stated that the pain was exclusive to his shoulder and that the physician who conducted the EMG test put needles from his cervical spine all the way down to the fingers on his left hand. In a March 2013 VA examination related to an increased rating claim for the Veteran’s left shoulder, which did not render any comment or opinion regarding his 38 U.S.C. § 1151 claim, he indicated that he was in constant pain and he felt the November 2002 EMG test was the cause of his constant pain. He claimed that it totally changed his lifestyle, including difficulties with driving and sleeping. As stated in the Board’s April 2010 remand, the Veteran is competent to speak to symptoms that are readily observable and is, therefore, competent to report that he experienced increase pain and loss of function of his left arm since the November 2002 EMG test. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board also noted that there was competent medical evidence suggesting that the November 2002 EMG may have resulted in the Veteran experiencing increased or additional disability. As shown above, the record contains both lay and medical evidence favorable to the Veteran’s claim, and such evidence must be addressed on remand in a new VA medical opinion, including a new examination if appropriate. The AOJ should also obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. The matter is REMANDED for the following action: 1. The AOJ should obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. 2. After all newly obtained evidence has been associated with the claims file, arrange to obtain a VA medical opinion by an appropriate examiner with respect to the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for an additional disability of the left shoulder, arm, and hand as the result of the November 2002 EMG test. The examiner should review the entire claims file, including a copy of this remand, and should indicate that such review was completed in the examination report. All necessary tests and studies should be performed, including a new VA examination if deemed appropriate by the examiner. The examiner is asked to provide opinions regarding the following: a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran sustained an additional disability or an increase in the severity of a service-connected disability as a result of the November 2002 EMG test. b) If the answer is affirmative, whether it is at least as likely as not (i.e., a 50 percent or more probability) that the additional disability or increase in severity of a service-connected disability was due to an event not reasonably foreseeable. Such an event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment or lack of treatment. The examiner must provide a thorough rationale for all opinions rendered and should reference the evidence of record where appropriate. The examiner should specifically discuss the favorable medical and lay evidence of record, including, but not limited to, the relevant aspects of the evidence described above. The examiner’s analysis should include a discussion regarding the Veteran’s claim that the November 2002 EMG test resulted in nerve damage and led to an increase in aching and pain in his shoulder, arm, and hand. If the examiner finds that the Veteran does not have an additional disability or an increase in the severity of a service-connected disability due to the November 2002 EMG test, the examiner should discuss any information relevant to the nature and etiology of any current disability of the Veteran’s left shoulder, arm, or hand that is appropriate to support a negative finding regarding his claim. If the requested opinions cannot be provided without resorting to speculation, the examiner should provide reasons why this is so, and discuss whether the inability to provide the necessary opinion is due to the absence of   evidence or the limits of medical and scientific knowledge. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, 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.