Citation Nr: 20023933 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 15-43 296 DATE: April 7, 2020 ORDER Compensation under 38 U.S.C. § 1151 for residuals of a neck and left shoulder injury is denied. FINDING OF FACT The evidence of record does not show that the Veteran’s residuals of a neck and left shoulder injury was caused by medical treatment he received from the VA Medical Center on October 7, 2014; was proximately due to the carelessness, negligence or lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical professional involved in the physical therapy treatment provided to the Veteran on October 7, 2014; or was an unforeseeable result of VA treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of residuals of a neck and left shoulder injury have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from February 1968 to August 1972. The Veteran is seeking compensation under 38 U.S.C. § 1151 for residuals of a neck and left shoulder injury. He testified at his December 2018 Board hearing that he visited the emergency department (ER) of VA Medical Centre (VAMC) in Cheyenne Wyoming for a neck/left shoulder injury on October 7, 2014, and that after being treated with injection and prescribed with pain medication, he was sent to a physical therapist to get a soft collar. He reported that the therapist manipulated his neck against his will, causing substantial pain and discomfort; and that he developed worsening conditions in his neck and left shoulder after the therapy treatment on October 7, 2014. 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 or death were service connected. A disability or death is a qualifying additional disability or qualifying death if (1) the additional disability or death was not the result of the Veteran’s willful misconduct, (2) the additional 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 (3) the proximate cause of the additional 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. A Board decision in April 2019 remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. In part, the Board directed the AOJ to schedule the Veteran for a VA examination and seek an opinion from the examiner regarding whether additional disability in Veteran’s neck and/or left shoulder was developed as result of the physical therapy treatment at VAMC on October 7, 2014 and whether such additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA physical therapist in providing the treatment on October 7, 2014. Subsequently, records show that a VA examination was scheduled but was canceled because the Veteran could not be found. AOJ issued a Supplemental Statement of the Case (SSOC) in December 2019, finding that the Veteran missed the scheduled VA examination and there was no information indicating a good cause for his absence of the scheduled examination. In January 2020, AOJ contacted the Veteran’s representative to provide an opportunity for the representative to submit written argument for this appeal. As of the date of this decision, VA has not received such argument from the Veteran or his representative. VA regulations provide that if a veteran fails to report to a VA examination without good cause, the claim will be adjudicated based on the evidence of record. 38 C.F.R. § 3.655. Here, the AOJ has found that the Veteran missed the scheduled examination without a good cause, and neither the Veteran nor his representative has disputed such finding. As such, the Board will adjudicate the claims based on the evidence of the record. VA treatment records show that on October 7, 2014, the Veteran went to the emergency department (ER) of Cheyenne VA Medical Centre (VAMC) in Wyoming for shoulder and neck pain. He reported that he felt a pop in the left shoulder area and immediate pain and burning in the left trapezius muscle area at the night before. He was diagnosed with acute trapeziums strain and was treated by injections and pain medication. After being discharged from ER, he went to the physical therapy room for issuance of a cervical collar/neck brace and neck exercises. At the beginning of the physical therapy, the Veteran was only able to rotate, side bend, flex and extend the neck in all directions about 10 degrees. The physical therapist completed soft-tissue mobilization to the cervical muscles at a very gentle pressure. The Veteran also underwent gentle and rotational mobilizations of the neck, and was educated on cervical stretches and use of a cervical collar. At the close of the physical therapy visit. He was able to rotate his head to about 45 degrees, but continued to have difficulties with spasms. The therapist noted that the Veteran appeared to have C4-6 left facet joint dysfunction and difficulties with soft-tissue mobilization, and that he complained that he was tired of having significant pain. The therapist indicated that the Veteran may benefit from further physical therapy if things did not relax over the next few weeks. (Continued on the next page)   VA treatment records also show that in January 2015, the Veteran returned to the VA clinic and reported that he had injured his neck while fixing a hot water heater. MRI in March 2015 showed severe osteoarthritis (OA) changes at C3-C4 through C6-C7 with neuroforaminal narrowing and soft tissue swelling. He reported at that time having experienced left side pain from neck to leg and numbness and tingling in the left arm. The evidence of record does not show that medical treatment the Veteran received from the VA Medical Center on October 7, 2014 caused additional disability in his neck and left shoulder. While the evidence shows that the Veteran developed OA in his cervical spine, the evidence does not show this was related to the treatment he received form VA medical center on October 7, 2014. First, the injury he had at that time was diagnosed as an acute trapeziums strain, which appeared to be resolved, as the records do not show any complains of neck or shoulder muscle pain until January 2015 when he re-injured his neck. At that time, he reported that this injury was due to repairing a hot water heater, and he did not relate his injury with the physical therapy treatment on October 7, 2014. Moreover, the records show that, on October 7, 2014, the VA physical therapist performed soft-tissue mobilization to the Veteran’s cervical muscles with a very gentle pressure. At the beginning of the physical therapy, the Veteran could only rotate his neck to about 10 degrees, and after the physical therapy session, he could rotate his neck to about 45 degrees, which indicates that the Veteran’s neck condition had improved after physical therapy treatment as the range of motion of his neck had increased. As such, the evidence does not show that the Veteran’s residuals of a neck and left shoulder injury was caused by medical treatment he received from the VA Medical Center on October 7, 2014, or was proximately due to the carelessness, negligence or lack of proper skill, error in judgment or similar instance of fault on the part of the VA physical therapist who provided the treatment to the Veteran on October 7, 2014. Accordingly, compensation under 38 U.S.C. § 1151 for residuals of a neck and left shoulder injury is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.