Citation Nr: 20081908 Decision Date: 12/31/20 Archive Date: 12/31/20 DOCKET NO. 16-27 063 DATE: December 31, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder condition is denied. FINDING OF FACT The Veteran does not have an additional disability as a result of treatment by VA. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a right shoulder condition as a result of VA treatment are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1970 to September 1973. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2015 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 in the Portland RO before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. The Veteran’s wife was also present. A transcript of the hearing is available in the record. This matter was previously remanded in January 2020 for further development, to include requesting the Agency of Original Jurisdiction (AOJ) to obtain treatment records and a VA examination. The records and examination were obtained; and thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder condition is denied. The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for additional permanent damage to his right shoulder due to delays by VA in providing him the opportunity for surgery, following a nonservice-connected right shoulder injury. When a claimant incurs 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; 38 C.F.R. § 3.358 (a). To be awarded compensation under section 1151, a claimant 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). In April 2010, the Veteran injured his shoulder and sought treatment at a VA facility. The impression noted was a probable old partial rotator cuff tear with recent injury causing a complete tear of the rotator cuff and questionable small osteochondral fracture in the region of the greater tuberosity along with a partial tear of the long head of the biceps muscle. See April 2010 VA Treatment Record. The doctor recommended that the Veteran go into formal physical therapy to start ice massages, alternating moist heat and passive range of motion of the right shoulder to see if he could regain some of his passive motion. A May 2010 private treatment record from Dr. P.D. indicated that the conservative care recommended by VA for the rotator cuff tear was reasonable, although acute traumatic injuries in a younger patient are usually treated more aggressively with arthroscopy and repair. At that time, Dr. P.D. could not recommend treatment as he did not have a copy of the Veteran’s MRI. The Veteran returned with a copy of his MRI and Dr. P.D. stated that if the Veteran had persistent shoulder pain and weakness despite conservative treatment, that arthroscopy, decompression, and possible rotator cuff repair would be indicated although the possibility of repair may be variable given the appearance on the MRI. The Veteran attended three physical therapy sessions through June 2010. A June 2010 treatment record noted the Veteran had been attending physical therapy and felt his symptoms have markedly improved although he still had weakness with his shoulder on any type of work above his head. The doctor noted that the Veteran exhibited enough weakness in his right shoulder that he deserved consideration for rotator cuff repair surgery and should be referred for surgical evaluation. See June 2010 VA Treatment Record. In July 2010, the Veteran was referred by VA to a private orthopedist. He also underwent another MRI. The results were compared with the films taken in April 2010 after the accident. It noted that in the three-month interval since the accident, the sclerotic morphology involving the right humeral head and greater tuberosity region had returned to normal. There were no abnormal sclerotic changes. The findings were consistent with interval healing of an avulsive fracture or clearing of the presumed periosteal pathology that had been present. The a.c. joint, the glenohumeral joint and the remaining bones of the shoulder appeared normal. See July 2010 VA Treatment Record. In July 2012, the Veteran was placed on a surgical waitlist at a VA Medical Center. In September 2012, the Veteran’s private treating physician wrote a letter documenting that at the time, the Veteran was considering his options because his prognosis only suggested a 60-70 percent chance of improvement as his shoulder had some atrophy. In October 2013, surgery was scheduled, pending a new MRI. Late in October 2013, the private physician, Dr. P.D. noted that an attempt at repair would be unpredictable and did not recommend the Veteran as a surgical candidate. See October 2013 Private Treatment Record. The Veteran has argued that the long delay between his initial injury and his referral for surgery led to the additional disability of muscle atrophy and permanent shoulder damage. The Veteran underwent a VA examination in August 2020. The VA examiner performed an in-person examination and reviewed the Veteran’s VA and private treatment records. The VA examiner stated that VA exercised standard medical care as there is no additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or delay in care. The VA examiner stated the Veteran had a chronic rotator cuff injury with resulting atrophy before the April 2010 injury. As this condition existed before, it was questionable whether immediate surgery would provide a justifiable benefit and therefore conservative treatment was recommended to see how much the Veteran improved. Even if the Veteran had undergone immediate surgery, his rotator cuff muscles were still of mediocre quality due to the pre-existing atrophy and having surgery within the first three months after the injury would not have improved his chances of a successful surgery. The examiner further explained that waiting for surgery would not appreciably decrease the likelihood of surgical success in this case. The VA examiner pointed to the May 2010 statement by the Veteran’s private treating physician, that stated the Veteran’s muscles were of questionable quality and recommended conservative care due to atrophy of the muscles. The statement was made within the first three months of the accident. Therefore, it is his opinion that the Veteran did not suffer any additional disability due to lack of reasonable healthcare recommendations. As the VA examiner thoroughly reviewed the Veteran’s records, completed an in-person examination of the Veteran, and gave an extensive rationale for his opinion, the Board finds this opinion highly probative. The Board finds that the Veteran has not shown an additional disability resulting from VA medical care and therefore his claim must be denied. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). There is no positive medical opinion of record showing an additional disability or permanent shoulder damage as a result of the Veteran not receiving surgery promptly after his injury. In addressing the Veteran’s lay contentions, the Board notes that though he is competent to provide lay testimony regarding observable symptoms; however, he does not have the medical expertise necessary to address the complex medical issues of whether he received inadequate medical care from the VA, and whether that care resulted in a worsening of his right shoulder condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As an additional disability has not been shown, the Board need not reach the question of whether the proximate cause of any such additional disability was: (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 not reasonably foreseeable. See 38 C.F.R. § 3.361. For these reasons, the Board finds that the preponderance of the evidence is against the claim for an additional disability due to treatment by VA under 38 U.S.C. § 1151. Accordingly, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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.