Citation Nr: 20006103 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 16-30 172 DATE: January 24, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for left side nerve damage is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1974 to April 1977. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for left side nerve damage is remanded. The Veteran contends that he has received left arm and left side nerve damage as a result of the VA’s failure to timely diagnose and properly treat a lung infection resulting in emergency surgery. Under 38 U.S.C. § § 1151, compensation shall be awarded for a Veteran’s qualifying additional disability in the same manner as if such additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability is 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 an event not reasonably foreseeable. 38 U.S.C. § § 1151(a). To determine whether a Veteran has additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, upon which the claim is based to the Veteran’s condition after such care or treatment has stopped. 38 C.F.R. § § 3.361 (b); see also 38 C.F.R. § 3.358 (b)(1). A Compensation and Pension (C&P) Examination was completed by a VA Examiner in February 2014. The VA examiner opined that it was less likely than not that any disabilities were caused by or became worse as a result of the VA treatment at issue because the disabilities resulted from either carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; or because the disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider; or because of failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability, or allowed the disease or disability to continue or progress. In his rationale for his opinion, the VA examiner indicates that there is no basis in medical fact identified that supports a claim of nerve damage to the left arm secondary to surgery on the left lung due to a misdiagnosis of lung infection. No nerve damage to the left arm has been medically documented. The VA examiner does not address the Veteran’s claim of nerve damage to the left side. In addition, the examiner notes February 2012 VA treatment records, which are before the emergency surgery at issue, that document a left bicep tendon tear and indicate the Veteran complaining of left arm pain and weakness. The examiner does not give an opinion as to whether the emergency surgery could have worsened this injury resulting in a disability. As such, the Board finds the February 2014 C&P opinion incomplete and in need of an addendum to clarify whether the Veteran has a left arm never disability or left side nerve disability, and whether the injury noted in the February 2012 VA treatment records was worsened due to the emergency surgery. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2014 VA examiner or another examiner if the February 2014 examiner is unavailable. The examiner is asked to address: (a) Whether the Veteran has a left arm nerve disability or left side nerve disability as a result of VA medical treatment. (b) Is at least as likely as not that any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part (i.e. did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider)? (c) Notwithstanding any informed consent documents, the examiner must also state whether any additional disability was caused by an event that was not reasonably foreseeable by a reasonable health care provider based upon the specific facts and circumstances of this Veteran’s case. (d) Whether the left bicep tear injury noted in February 2012 VA treatment records was worsened as a result of the emergency surgery. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.