Citation Nr: 19161291 Decision Date: 08/08/19 Archive Date: 08/07/19 DOCKET NO. 1441198 DATE: August 8, 2019 ORDER Compensation under 38 U.S.C. § 1151 for an additional disability incurred as a result of VA medical and surgical treatment for a right thigh growth at the Minneapolis VAMC in August 2014 is denied. Service connection for a right shoulder disorder is denied. Service connection for a right wrist disorder is denied. An effective date earlier than August 22, 2012, for the assigment of a 20 percent rating for a left shoulder disability is denied. An effective date earlier than August 6, 2012, for the grant of service connection for left lower extremity radiculopathy is denied. An effective date of January 3, 2014, but not earlier, for the establishment of service connection for right lower extremity radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The claim for a rating in excess of 20 percent for a left shoulder disability is remanded. The claim for a rating in excess of 10 percent for a left knee disability is remanded. The claim for a rating in excess of 20 percent for a lumbar spine disability is remanded. The claim for a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. The claim for a rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Service connection for an acquired psychiatric disorder, to include as secondary to a service connected disability, is remanded. FINDINGS OF FACT 1. The evidence of record is unclear whether the Veteran was misdiagnosed with a non-fatty lipoma; however, the evidence of record does not demonstrate that the medical professionals involved in the Veteran’s medical and surgical treatment for a right thigh growth at the Minneapolis VAMC in August 2014 failed to exercise the degree of care that one would expect from a reasonable health care provider or that the Veteran experienced an additional disability that resulted from an event that was not reasonably foreseeable. 2. A right shoulder disorder was not shown in service, shoulder arthritis was not diagnosed within one year of service discharge, and the weight of the evidence is against a finding that the Veteran’s right shoulder disorder is related to service or was caused or aggravated by the Veteran’s service connected lumbar spine disability. 3. A right wrist disorder was not shown in service, wrist arthritis was not diagnosed within one year of service discharge, and the weight of the evidence is against a finding that the Veteran’s right wrist disorder is related to service or was caused or aggravated by the Veteran’s service connected lumbar spine disability. 4. On August 22, 2012, and no earlier, the Veteran’s claim for an increased rating for his service connected left shoulder disability was received. It is not factually ascertainable that the Veteran’s left shoulder disability warranted a 20 percent rating prior to August 22, 2012. 5. On August 6, 2012, the Veteran was diagnosed with left lower extremity radiculopathy. 6. On January 3, 2014, the Veteran was diagnosed with right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for medical and surgical treatment for a right thigh growth at the Minneapolis VAMC in August 2014 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.§ 1131; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for a right wrist disorder have not been met. 38 U.S.C.§ 1131; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for an effective date prior to August 22, 2012, for a 20 percent rating for a service connected left shoulder disability have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 5. The criteria for an effective date prior to August 6, 2012, for the grant of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date of January 3, 2014, but not earlier, for the grant of service connection for right lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from October 1987 to June 1990. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2017. A transcript of that hearing is of record. 1151 Claim In September 2014, the Veteran asserted that VA was negligent in performing an August 2014 surgical procedure for a right thigh growth. He asserts that he now has neurologic problems in his right thigh due to this VA error. His claim was denied by a March 2015 rating decision. At the December 2017 Board hearing, the Veteran testified that he went to the Minneapolis VAMC for removal of a right thigh growth. He testified that he was originally diagnosed with a non-fatty lipoma and that removal was recommended. He testified that the surgeon cut deep through nerve tissue, but afterwards, he reported being told that the growth had been misdiagnosed, that he did not have a non-fatty lipoma, and that treatment of the condition should not have required surgery. He testified that he was never told of the possibility of nerve damage prior to the produce, because if he had, he would not have elected to undergo the surgery. Under 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 were service connected. 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, 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, and the proximate cause of the disability or death was either 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 an event not reasonably foreseeable. See 38 U.S.C. § 1151. The Veteran’s medical records confirm that he underwent right thigh surgery at VA in August 2014. The record shows that the Veteran signed a Consent for Clinical Treatment/Procedure that specifically listed a known risk and side effect of the treatment/procedure included both scarring that was disfiguring or painful and nerve damage. In March 2015, a VA physician had the opportunity to review the Veteran’s claims file. The physician opined that the unfortunate outcome of the Veteran’s additional disability following VA surgery was less likely than not due to carelessness, negligence, lack of proper skill, or error in judgment in the Veteran’s hospital care, medical or surgical treatment, or examination. The physician reported that he found no evidence of carelessness, negligence, lack of proper skill or error in judgement related to this procedure. The physician reported that the surgeon noted that the lesion was deep. The physician reported that informed consent was obtained that informed the Veteran that the residuals may include scarring that was disfiguring or painful and that nerve damage could occur. The examiner reported that there was no evidence of residuals of muscle injury related to this surgery. Based on the Veteran’s testimony, essentially alleging malpractice on the part of VA, the Board decided to seek an independent medical opinion from a medical professional outside of VA. In November 2018, an independent medical opinion was provided by an associate professor of dermatology, who had the opportunity to review the Veteran’s claim file. The independent dermatologist opined that it was at least as likely as not that the Veteran was misdiagnosed with a non-fatty lipoma. The independent dermatologist reported that the diagnosis of a non-fatty lipoma did not exist as a lipoma by definition was a tumor of fat cells. However, the independent dermatologist reported that that the surgeon provided all the risks of the procedure included, but not limited to bleeding, infection, healing or scarring that could be disfiguring or painful, nerve damage, or recurrence of the mass or lump. The independent dermatologist reported that the Veteran was asked the appropriate questions and he specifically provided consent for the surgical procedure by a signed VA Form APR 2008 10-0431a (Informed Consent for Clinical Treatments and Procedures). The independent dermatologist reported that literature was provided to the Veteran and the physician provided contact information. The independent dermatologist reported that the procedure was performed properly and professionally. The independent dermatologist reported that the extracted mass was deep and required opening of the muscle to be removed. The independent dermatologist reported that the extracted mass was described as a lipomatous tissue measuring 2.5 by 1.0 by 0.5 centimeters. The independent dermatologist reported that the diagnosis was fragments of adipose tissue and skeletal tissue with no evidence of malignancy. The independent dermatologist reported that the medical conduct of the attending physician was proper. The independent dermatologist reported that the physician offered the Veteran a more precise way to determine the location of the mass with diagnostic imaging, but the Veteran rejected the proposal and asked to have the mass removed on the same day without any other test. The independent dermatologist opined that there was no evidence of error in the diagnosis, error of judgment, negligence, lack of care or lack of proper skills on the part of any of the physicians that treated the Veteran, including the surgeon. The VA physician’s opinion and the independent dermatologist’s opinion have not been questioned or undermined by any medical professional. While the Veteran asserts that he feels VA committed negligence in his care as he was misdiagnosed with a non-fatty lipoma, the Board must weigh this assertion against the other evidence of record. Here both a VA physician and an independent dermatologist specifically addressed the questions upon which this case turned and provided sufficient rationale to support their opinions. The independent dermatologist acknowledged that the Veteran may have been misdiagnosed given a technical diagnosis of lipoma, but regardless of whether the diagnosis of probable lipoma was correct, the independent dermatologist found no basis to conclude that such a determination constituted error of judgment, negligence, lack of care or lack of proper skills on the part of any of the physicians that treated the Veteran, including the surgeon. Finally, the evidence of records shows that the Veteran was aware of the possibility of nerve damage from the procedure as he specifically consented to it both orally and in writing. As such, the Board finds the opinions of the March 2015 VA physician and the November 2018 independent dermatologist to be highly probative and are afforded the greatest weight. When this is done, the evidence fails to establish that the Veteran’s medical and surgical treatment for a right thigh disorder at the Minneapolis VAMC in August 2015 was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or was due to an event not reasonably foreseeable. As such, the criteria for an 1151 claim have not been met, and the Veteran’s claim is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). In July 2014, the Veteran filed service connection claims for a right shoulder disorder and a right wrist disorder, which he asserts are secondary to a fall due to his service connected lumbar spine disability in June 2014. There is no suggestion that the Veteran’s right shoulder disorder or right wrist disorder had its onset during his active service or was otherwise directly related to his active service. The record does not show that the Veteran was diagnosed with right shoulder or right wrist arthritis within one year of separation from service. As such, the record contains no diagnosis of a right shoulder disorder or a right wrist disorder either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. The Veteran has not argued to the contrary, and, as noted, he specifically asserts that his right shoulder disorder and right wrist disorder are secondary to a fall as a result of his service connected lumbar spine disability. There is also no medical evidence linking the Veteran’s right shoulder disorder or right wrist disorder to his active service, and the Veteran has not submitted any medical opinion that even suggests a relationship between his right shoulder disorder or right wrist disorder and his active service. See Shedden, 381 F.3d 1163, 1167. Regarding secondary service connection, the Veteran’s medical records show that he first diagnosed with right shoulder arthritis in February 2010. In January 2012, he treated for right shoulder stiffness. In August 2013, he treated for continued right shoulder pian after a fall about a year previously that resulted in dislocation and fracture. He first complained of right wrist symptoms after a cutting injury in May 2013 and underwent right wrist tendon repair surgery. In June 2014, the Veteran reported right shoulder and wrist pain after a May 2014 fall. The hospital records show that he reported falling forward onto his outstretched arms. On examination, he had full range of motion with minimal pain. He had some swelling and tenderness over the ulnar aspect of the right wrist, but otherwise his upper extremities were normal. In January 2015, the Veteran was afforded a VA examination. The Veteran reported that he fell and injured his right shoulder and right wrist. The examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted a physical examination. The examiner noted that a June 2014 right shoulder x-ray showed mild degenerative changes with no evidence of fracture or dislocation. The examiner noted that the Veteran had undergone right wrist surgery in May 2012 and had continued to experience residuals from the surgery. The examiner opined that the Veteran’s right shoulder disorder and right wrist disorder were less likely than not caused or aggravated by his service connected lumbar spine disability. The examiner reported that the Veteran’s right shoulder disorder predated his fall. The examiner reported that the Veteran injured his right shoulder in August 2014 after a lifting injury. The examiner reported that he the Veteran injured his wrist in May 2013 and required surgery. Finally, the examiner noted that the Veteran complained of right wrist pain and stiffness and repeatedly attributed the pain and stiffness ot the tendon repair surgery. After weighing all the evidence, the Board finds great probative value in the January 2015 VA examiner’s opinions. These opinions are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran’s position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). These opinions in particular provided substantial reasoning and explanation as to why the Veteran’s right shoulder disorder and right wrist disorder were not caused or aggravated by the Veteran’s service connected lumbar spine disability. The Veteran has not submitted any competent evidence supporting his assertion that his right shoulder disorder or right wrist disorder was proximately due to or the result of his service connected lumbar spine disability. Therefore, after weighing all the evidence, the Board finds great probative value in the January 2015 VA examiner’s opinions. Consideration has been given to the Veteran’s assertion that his right shoulder disorder and right wrist disorder were proximately due to his service connected lumbar spine disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the etiology of shoulder and wrist disorders, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Shoulder and wrist disorders not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding etiology, as the evidence shows that physical examinations that include objective medical tests, such as x-rays and MRIs, are needed to properly assess and diagnose the disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That is, although the Board readily acknowledges that Veteran is competent to report perceived shoulder and wrist symptoms such as pain, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis a disability in either joint or to provide a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating lumbar spine and shoulder or wrist disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. As described, the criteria for service connection have not been met for either a right shoulder disorder or a right wrist disorder. That is, the evidence does not show that a right shoulder disorder or a right wrist disorder was diagnosed in service or within a year of service, the weight of the evidence is against a finding that a chronic right shoulder disorder or a chronic right wrist disorder has existed continuously since service, and the weight of the evidence is against a finding that a right shoulder disorder or a right wrist disorder was due to or aggravated by the Veteran’s service connected lumbar spine disability. As such, the criteria for service connection for a right shoulder disorder and a right wrist disorder have not been met, and the Veteran’s claims are denied. Effective Dates Left Shoulder Disability The Veteran was granted an increased rating of 20 percent for his left shoulder disability in a November 2016 rating decision, with an effective date of August 22, 2012. In May 2017, the Veteran asserted that he was entitled to an earlier effective date. An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). “[A]n increase in a veteran’s service connected disability must have occurred during the one year period prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). As noted above, it is the date VA received the application for an increase that primarily controls the effective date of any such increase. The Veteran did not file an application for an increased rating until August 22, 2012. Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that “[s]ection 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid.” Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. See also Brannon v. West, 12 Vet. App. 32 (1998). Here, the Veteran was afforded VA examinations for his left shoulder disability in May 2013, January 2015, and November 2015. However, the Veteran was granted an increased rating based on the findings of the November 2015 VA examination. The Veteran’s treatment records did not show findings consistent with a higher rating. Reviewing the record, there is no document prior to August 22, 2012, that would make it factually ascertainable that the Veteran’s left shoulder disability warranted a 20 percent rating. Accordingly, the claim for an effective date earlier than August 22, 2012, for a 20 percent rating for a left shoulder disability is denied Bilateral Lower Extremity Radiculopathy Regarding his left lower extremity radiculopathy, the Veteran was granted service connection for left lower extremity radiculopathy in a November 2016 rating decision, with an effective date of August 6, 2012. In May 2017, the Veteran asserted that he was entitled to an effected date prior to August 6, 2012. The general rule for earlier effective dates for service connection provides that if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1). If a claim is not received within a year of separation, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101 (a). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the record shows that the Veteran was diagnosed with left lower extremity radiculopathy on August 6, 2012. As such, he was granted an effective date of August 6, 2012, which is the day entitlement arose. Accordingly, the claim for an effective date earlier than August 6, 2012, for the grant of service connection for left lower extremity radiculopathy is denied. Regarding his right lower extremity radiculopathy, the Veteran was granted service connection for right lower extremity radiculopathy in a November 2016 rating decision, with an effective date of September 1, 2015. In May 2017, the Veteran asserted that he was entitled to an effective date prior to September 1, 2015, although he did not specifically identify a date which he felt should be the effective date. A review of the record shows that the Veteran was diagnosed with right lower extremity radiculopathy on January 3, 2014. As such, the date entitlement arose for his right lower extremity radiculopathy was January 3, 2014. Accordingly, the Veteran’s claim for earlier effective date for the grant of service connection for right lower extremity radiculopathy is granted as of January 3, 2014. REASONS FOR REMAND Regarding the Veteran’s increased rating claims for a left shoulder disability, a left knee disability, a lumbar spine disability, and bilateral lower extremity radiculopathy, at the December 2017 Board hearing, the Veteran testified that these disabilities had worsened. The veteran was last afforded a VA examination for these disabilities in November 2015. As such, the Veteran should be afforded a new VA examination to determine the current nature and severity of his service connected left shoulder disability, left knee disability, lumbar spine disability, and bilateral lower extremity radiculopathy. Regarding the Veteran’s service connection claim for an acquired psychiatric disorder, at the December 2017 Board hearing, the Veteran testified that his acquired psychiatric disorder was secondary to his service connected disabilities. He testified that he was starting mental health treatment at the end of the month. In August 2014, the Veteran’s physician reported that his depression was related to his medical conditions although he did not specifically indicate that the Veteran’s service connected disabilities alone caused his acquired psychiatric disability. As such, a VA examination is required to adjudicate the service connection claim. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records. 2. Schedule the Veteran for a VA examination(s) to determine the current nature and severity of his service connected left shoulder disability, left knee disability, lumbar spine disability, and bilateral lower extremity radiculopathy. The examiner should make specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the use of any joint. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of any joint due to pain or any of the other symptoms listed above during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the examination report include the results of the Veteran’s active and passive motion in both weight bearing and non-weigh bearing modes, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained why. 3. Schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the etiology of any acquired psychiatric disorder. The examiner should provide opinions responding to the following: a. What is (are) the diagnosis(es) for the Veteran’s current psychiatric disability(ies), if any? b. Is at least as likely as not (50 percent or better probability) that any diagnosed acquired psychiatric disorder either began in or was otherwise caused by the Veteran’s active service? Why or why not? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder was caused by a service connected disability? Why or why not? In answering this question, the examiner should address the lay statements of the Veteran and the statement of the Veteran’s physician that his acquired psychiatric disorder is due to his disabilities. d. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder was aggravated by a service connected disability or disabilities? Why or why not? Should aggravation be found, the examiner should attempt to identify a baseline for the acquired psychiatric disorder prior to the aggravation occurring. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.