Citation Nr: 20036715 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 15-04 137 DATE: May 28, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for degenerative joint disease and internal derangement of the left shoulder, status post hermiarthroplasty is denied. REMANDED Entitlement to service connection for a right arm disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, secondary to a right arm disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The record does not show carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department of Veterans Affairs (VA) in furnishing hospital care, treatment, or examination. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for degenerative joint disease and internal derangement of the left shoulder, status post hermiarthroplasty have not been met. 38 U.S.C. §§ 1151, 1703, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1969 to February 1980. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a VA Agency of Original Jurisdiction (AOJ) rating decision dated in December 2012. The Board remanded this case to the AOJ in October 2018 for further development. The case has since returned to the Board for adjudication. The Board finds that the AOJ substantially complied with the remand directives regarding the claim pursuant to 38 U.S.C. § 1151. Accordingly, another remand is not warranted. Unfortunately, the claims for service connection and for a TDIU must be remanded. 1. Entitlement to compensation under 38 U.S.C. § 1151 for degenerative joint disease and internal derangement of the left shoulder, status post hermiarthroplasty The Veteran seeks compensation under 38 U.S.C. § 1151 for residual impairment associated with left shoulder surgery at Three Gables Surgery Center in August 2006. The Veteran has advanced two contentions: 1) that the surgeon was negligent, careless, or erred in judgment by using an oversized prosthetic in his left shoulder; and 2) that the Veteran has additional left shoulder disability because of a delay in performing surgery for left humerus fracture. Although sympathetic to the Veteran’s contentions, the Board finds that this claim must be denied. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. For the purposes of this section, a disability is a “qualifying additional disability” if the disability was not the result of the veteran’s willful misconduct, and the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, “either by a Department employee or in a Department facility.” In addition, the proximate cause of the disability must be either 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. Section 1151 contains two causation elements: actual cause and proximate cause. See 38 U.S.C. § 1151. The causation element of § 1151 is satisfied not only when an injury is “directly” or “actually” caused by the actions of VA employees, but also where an injury occurs “in a [VA] facility” resulting from VA’s negligence. Viegas, supra. This includes “treatment-related incidents that occur in the physical premises controlled and maintained by the VA.” Id. If the evidence of record does not demonstrate additional disability was actually caused by VA treatment, examination, or surgery, the analysis need not advance to the question of proximate cause, including negligence and reasonable foreseeability. Mangham v. Shinseki, 23 Vet. App. 284, 287-88 (2009). See also 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, treatment, or examination proximately caused a veteran’s additional disability, it must be shown that the care, treatment, or examination caused the veteran’s additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (ii) VA furnished the hospital care, treatment, or examination without the Veteran’s, or in certain cases a designated representative’s, informed consent. 38 C.F.R. § 3.361 (d)(1). A claim for compensation under 38 U.S.C. § 1151 must, as a threshold matter, be based on treatment or care “provided by VA,” which is further defined as services that were either provided by a VA employee or performed in a VA facility. 38 U.S.C. § 1151 (a)(1). The implementing regulation, 38 C.F.R. § 3.361 (f), further provides that treatment or care furnished either (a) under a contract made under 38 U.S.C. § 1703 (authorizing VA to contract with a non-VA provider for medical service to veterans when VA is not capable of furnishing the care required) or (b) under 38 U.S.C. § 8153 (concerning sharing of health-care resources) in a facility over which the Secretary does not have direct jurisdiction are not treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151 (a)(1). Under 38 C.F.R. § 3.361 (e)(1), a VA employee is an individual (i) who is appointed by VA in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C.A. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. Under 38 C.F.R. § 3.361 (e)(2), a VA facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. See 38 U.S.C. § 1701 (3)(A). Under 38 C.F.R. § 3.361 (f), activities that are not hospital care, medical or surgical treatment, or examination by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151 (a) are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703 ; (2) nursing home care furnished under 38 U.S.C. § 1720 ; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have jurisdiction. In reference to the above, 38 U.S.C. § 1703 states that when Department facilities are not capable of furnishing economical hospital care or medical services because of geographical inaccessibility or are not capable of furnishing the care or services required, the Secretary, as authorized in section 1710 of this title, may contract with non-Department facilities in order to furnish hospital care or medical services to a veteran for the treatment of a service-connected disability. See 38 U.S.C. § 1703 (a)(1)(A). Turning to the evidence, the record reflects that the Veteran was diagnosed with a left humerus fracture after he fell in May 2006. His fall was attributed to an episode of syncope, and he was referred to cardiology for an assessment. The Veteran was provided a sling for his left shoulder, and referred to an outside orthopedist at Scott Orthopedics. In June 2006, the Veteran was unable to have surgery “due to heart problems.” The Veteran was in the process of getting cardiac clearance for surgery. On July 31, 2006, the Veteran was deemed to be at low risk for perioperative cardiac events during orthopedic surgery. On August 3, 2006, Dr. B. noted that preoperative clearance was completed. On August 8, 2006, a surgical appointment was made for August 22, 2006. On August 22, 2006, surgery was completed at Three Gables Surgery Center. In August 2012, a private practitioner, Dr. J. M. D., provided a report. Dr. D. reported that the history of the Veteran’s left shoulder disability was that he fell in May 2006, and Dr. B. performed surgery and placed an excessively large prosthesis. Subsequently, the Veteran had a seizure and fell, causing a second fracture to the left shoulder below the prosthesis. The Veteran had difficulties with loss of sensation in the left arm, pain with elevation, pain with flexion, and difficulty placing the hand in the correct position for activities. The Veteran underwent a VA examination in October 2012. He was diagnosed with degenerative joint disease and internal derangement of the left shoulder status post hemiarthroplasty. The Veteran reported that he fell in May 2006 and his broken shoulder was not treated for two to three months. The Veteran reported pain from left elbow to shoulder, muscle problems, and decreased use of the left arm after the surgery. The Veteran’s records reflect that in April 2011, the prosthetic was noted to be ill fitting, but the Veteran was not a candidate for surgery at that time. However, the Veteran fell a second time, fracturing his humerus below the prosthetic, and underwent a second surgery. The examiner opined that it is at least as likely as not that the Veteran’s left shoulder complications are proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance. The examiner explained that size consideration in the selection of the humeral head component is essential; oversizing the prosthetic may significantly reduce the laxity of the joint and range of motion, and can result in pain, stiffness, and compromise the rotator cuff. In June 2019, the AOJ obtained a supplemental opinion. The examiner opined that the Veteran’s left shoulder disability was less likely than not caused by the delay between when the Veteran was seen in May 2006 for his left humerus fracture to when he underwent surgery on August 22, 2006. The examiner reviewed the medical records, and described the chronology of relevant events. The examiner explained that the Veteran was admitted in May 2006 after passing out and fracturing his left humerus, at which time a workup was started for the syncope, which included neurology and cardiology consultations. The surgery was delayed due to a through workup, including a 30-day monitor, tilt table testing, echocardiogram, and a dobutamine stress test. The Veteran should have had the cardiology clearance before undergoing surgery. It is at least as likely as not that the Veteran’s disability was related to the use of an oversized humeral head prosthesis and extruded cement. Although sympathetic to the Veteran’s contentions, the Board concludes that the claim must be denied. Compensation is awarded under the provisions of 38 U.S.C. § 1151 for additional disability only if such additional disability was caused by hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. The record reflects that the Veteran’s left shoulder disability was not caused by a VA employee or in a VA facility. The Veteran’s August 2006 surgery, which was contracted for with a non-VA provider, is not considered care furnished by VA for the purpose of receiving compensation under 38 U.S.C. § 1151. There is no evidence of record to demonstrate that Scott Orthopedic or Three Gables Surgery Center are VA facilities or that Dr. B. was a VA employee. See 38 C.F.R. § 3.361 (e)(1), (2). While a VA provider referred the Veteran to this facility, and payment for the procedure was provided by VA on a fee basis, the Veteran has provided no evidence to demonstrate that the facilities or doctor in question were under the direct control of the Secretary, or were part of the VA healthcare system at the time of the procedure in question. A referral for treatment, or payment therefore, does not constitute direct control. Furthermore, to the extent that any of the care the Veteran received at Scott Orthopedic or Three Gables Surgery Center falls under the provisions of 38 U.S.C. § 1703 (contracts for medical services in non-Departmental facilities), such care is specifically excluded from consideration under 38 U.S.C. § 1151. See 38 C.F.R. § 3.361 (f)(1). The claim may also not be granted on the theory that a delay in surgery caused additional disability. In this regard, the Board affords the June 2019 supplemental opinion significant weight because it directly addresses the Veteran’s contentions and addresses relevant evidence. The June 2019 VA examiner explained that the Veteran’s left shoulder disability was caused by the oversized humeral prosthesis placed by Dr. B. in August 2006, not by any delay in performing surgery. Moreover, the examiner explained that the delay was necessary in order to ensure the Veteran was medically cleared for surgery. The private opinion by Dr. D. in August 2012 receives little weight in the Board’s decision. Dr. D.’s opinion does not provide an opinion regarding the Veteran’s claim. Specifically, Dr. D. does not address whether the Veteran had additional disability that was proximately caused or actually caused by a VA employee. The preponderance of the competent medical evidence is against the Veteran’s claim for compensation, and it must be denied. The benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for a right arm disability is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, secondary to a right arm disability is remanded. 3. Entitlement to a TDIU The Veteran has not been afforded a VA examination for his right arm disability claim. The Board notes that a December 1994 rating decision found that the Veteran had a pre-existing right forearm disability, based on an annotation in the service treatment records (STRs) that his right arm pain was “EPTS” (existed prior to service) and that he had a history of trauma in 1976 with residual weakness and pain. However, the Board notes that the Veteran had a normal clinical examination of his upper extremities in October 1979. Additionally, Dr. J. M. D. submitted a report in August 2012, which indicated that the Veteran had no residual injuries from his pre-service injury. The Veteran had pain in 1980 during service, was discharged, and had surgery. The Veteran had a normal clinical evaluation of the right hand and forearm, except for pain and a well-healed surgical incision. Dr. D. opined that it is at least as likely as not that the Veteran’s right arm disability occurred during service. Unfortunately, Dr. D.’s opinion is inadequate for adjudication purposes. Dr. D. did not formally diagnose a right arm disability, but noted pain. Therefore, a remand is necessary in light of Saunders. Saunders v. Wilkie, 886 F.3d 1356 (2018) held that pain in the absence of a diagnosed condition which causes functional impairment may, in certain circumstances, qualify as a disability for VA purpose. As the Veteran’s claims for service connection of an acquired psychiatric disability and entitlement to a TDIU are intertwined, they must also be remanded. The matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate examination to determine the nature and etiology of the Veteran’s right arm pain. If an in-person examination is not feasible, the Veteran should be afforded an examination by other means. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. (a.) The examiner must review and address the following: the Veteran’s STRs, which indicate a preexisting arm disability with residuals of pain and weakness; the Veteran’s enlistment examination, finding normal upper extremities; Dr. J. M. D.’s August 2012 report; the Veteran’s July 2014 testimony that he did not have problems with his forearm prior to service but after the 1976 accident; the Veteran’s testimony that the forearm pain in service was different from the 1976 forearm pain he experienced; and the argument that if the Veteran’s forearm disability preexisted service, it was aggravated by service since the Veteran completed several weeks of basic training before he reported pain. (b.) The VA examiner is to clarify whether the Veteran has a right arm disability, or any residuals from herniation fascia of the right arm. If the Veteran does not have a current diagnosis associated with his reported arm symptoms, the examiner should state this with a fully reasoned explanation. The examiner should also state whether there is any functional impairment caused by the Veteran’s reported right arm pain. Evidence of pain alone that causes functional impairment, even without a specific diagnosis or identifiable disease, may constitute a disability for VA purposes. (c.) If there is a diagnosed disorder, disease, condition, or disability of the right arm OR functional limitations due to pain, the examiner must opine as to whether any disability of the right arm or functional limitations due to pain preexisted active duty service. (d.) If a disability preexisted active duty, the examiner must opine as to whether the disability was not aggravated by that period of service. Additionally, if the examiner finds that any disability of the right arm preexisted active duty, the examiner should address: (1) the evidence which supports this opinion; (2) the findings in the service entrance examinations, which demonstrate no abnormalities of the bilateral upper extremities; and (3) any evidence that demonstrates these disabilities were not aggravated by service. (e.) If there is a diagnosed disorder, disease, condition, or disability of the right arm OR functional limitations due to pain, the examiner must opine as to whether it is at least as likely as not (50 percent likelihood or greater) related to an in-service injury, event, or disease. 2. If the Veteran’s claim for service connection for a right arm disability is granted, schedule the Veteran for an appropriate examination to determine the nature and etiology of any acquired psychiatric disorder, to include anxiety disorder and depressive disorder. A copy of this remand must be made available to the examiner. The examiner should address the following: (a.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s psychiatric disability is proximately caused or aggravated by the Veteran’s service-connected right arm disability. (Continued on the next page)   A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.