Citation Nr: 21001365 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-35 038 DATE: January 7, 2021 ORDER Entitlement to compensation under 38 U.S.C.§ 1151 for residuals of left wrist ganglion cyst excision is denied. FINDING OF FACT An additional disability of the left wrist was not was not caused or aggravated by surgeries performed at a VA hospital, nor is it proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a left wrist disability are not met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1957 to December 1957. This appeal was previously before the Board in December 2017 and December 2018. Compensation Benefits under 38 U.S.C. § 1151 The Veteran asserts that he incurred additional disability as a result of a surgical procedure performed at the San Juan VA Medical Center in September 2013 and should be compensated under 38 U.S.C. § 1151. A veteran who suffers “qualifying additional disability” resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability . . . were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). In determining whether there is evidence of additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran’s additional disability. However, a mere showing of additional disability following the receipt of VA care, treatment, or examination will not establish cause; the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when such care or treatment caused the veteran’s additional disability and VA either “failed to exercise the degree of care that would be expected of a reasonable health care provider” or furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1)(i),(ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361(d)(2). The event does not have to be “completely unforeseeable or unimaginable” but it must “be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” 38 C.F.R. § 3.361(d)(2); see Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). The Veteran asserts that he has residual left wrist pain as a result of medical malpractice by VA following excision of a mass in September 2013. He states that when he returned for follow-up evaluation, the surgeon claimed the surgery had been performed on the “wrong side” and that the there was still a mass at the wrist. He states that the surgery was performed on the left side of his left hand instead of the right side the wrong side of the wrist. The Veteran maintains that, as a result he had to undergo another left wrist surgery in October 2013. However, the most probative evidence shows that the Veteran did not experience an additional disability as a result of either surgery. The record includes VA outpatient treatment records which show that in April 2013 the Veteran was evaluated for painful mass of the left hand near the wrist and scheduled for removal of a ganglion cyst of the left wrist. These records also show that in July 2013, prior to the surgery, the Veteran fell injuring his left wrist. X-ray findings showed a distal radius, old ulnar styloid fracture and in August 2013 je was referred to an orthopedist for persistent pain from left wrist nondisplaced fracture. See VA treatment records from San Juan VA Medical Center and Ponce Outpatient Clinic dated April 2013 to August 2013. The Veteran underwent excision of a ganglion cyst on the left wrist on September 18, 2013 without complications. Prior to the procedure he signed a consent form and the diagnosis, procedure, risks, benefits, potential complications and alternative for treatment were discussed. Although the September 2013 consent form and preoperative records do not specify the exact location of the cyst, a surgery verification note indicates that the surgery site was marked by the surgeon and verified with the Veteran prior to the surgery. The surgeon’s note indicated that the mass was consistent with a lipoma and that the specimen had been sent to the lab. A September 2013 pathology report confirmed the lipoma. On October 9, 2013, almost a month later, the Veteran underwent excision of a ganglion cyst located on the radial side of the left wrist without complications. A consent form was signed by the Veteran prior to the procedure. The surgeon’s note indicated that the mass was consistent with a lipoma and that the specimen had been sent to the lab. A September 2013 pathology report confirmed the ganglion (synovial) cyst. A VA medical opinion was obtained in November 2014. The examiner concluded there was no objective evidence of additional disability following the September 2013 and October 2013 surgeries. They noted that prior to the ganglion cyst excision, the Veteran suffered a nondisplaced fracture of the left wrist after falling and a July 2013 X-ray revealed severe left wrist osteoarthritis. At the time of the examination the Veteran had a recurrent left dorsal wrist ganglion cyst but no objective evidence of any disability with his left wrist or left hand. He had adequate and functional left wrist and hand, active range of motion and very good muscle strength. The examiner explained that the Veteran’s recurrent left dorsal wrist ganglion cyst was a very common complication after surgery and that an estimated 1-4 of every 10 cysts that are surgically removed will return. The examiner also noted that the Veteran’s main left wrist complaint was due to his severe left wrist osteoarthritis and left wrist non-displaced fracture that occurred before the ganglion cyst excision. A second VA medical opinion was obtained in November 2016. The examiner confirmed there was no additional left wrist disability but did not note the Veteran had a scar on the ulnar side from a ganglion cyst excision in September 2013 and a scar on the radial side of the left wrist from excision of a ganglion cyst in October 2013. The examiner noted that although the Veteran claims that the September 2013 was performed on the wrong side of his left hand, a pathology report shows reported tissue consistent with a lipoma (originally thought to be a ganglion cyst as pre-preoperative and post-operative report notes). The October 2013 pathology report revealed tissue consistent with ganglion synovial cyst. The Veteran gave informed consent and was aware of the procedures to be done and because the surgeries were done for the purpose of treatment (dorsal wrist mass removal at left and right sides) an opinion concerning an additional disability resulting from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; or from an event that could not have reasonably been foreseen by a reasonable healthcare provider; or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress could not be rendered. Based on full review of the file including the surgical reports and physical exam, the examiner also found no evidence that the left wrist conditions including surgical excision scars, recurrent ganglion cyst, and osteoarthritis were caused or became worse as a result of VA treatment. The examiner explained that recurrence of ganglion cysts after surgical excision is very common and the residual osteoarthritis is secondary to chronic posttraumatic changes unrelated to the wrist surgeries and no worsening is observed at follow up X-rays other than the normal course of post-traumatic changes. It was explained that the Veteran’s two left wrist scars were the normal and expected residuals after a surgery. The recurrent ganglion cyst at the left wrist radial side was also a normal and expected finding and does not correlate with an additional disability. Based on the above, there is no evidence suggesting that the care provided by VA in September 2013 or October 2013 caused the Veteran to develop additional left wrist disability. In this case, two different examiners have reviewed the evidence, and neither of them have rendered an opinion that supports the claim. Instead they both essentially opined that while the Veteran’s ganglion cyst returned after surgery, this is a known complication and its mere recurrence should not be construed as malpractice or below the standard of care. 38 C.F.R. § 3.361(c)(1). In addition, VA examiners found no causal connection between his left wrist arthritis and any hospital care, medical or surgical treatment, or examination furnished by VA. Without evidence of additional disability due to VA medical treatment, there is no need to address the further requirements for establishing entitlement to the benefit sought, including whether there was negligence or other instance of fault on VA’s part (or whether there is disability due to an unforeseen event). The Board finds in particular that the VA medical opinions are adequate because the examiners reviewed and discussed the relevant evidence, considered the Veteran’s contentions, and provided a supporting rationale for the conclusions reached. Further, there is no medical opinion of record to the contrary. As such, the VA medical opinions are the most probative evidence of record. (Continued on the next page)   The Board acknowledges the Veteran’s belief that he has additional disability as a result of what he believes was negligence on the part of VA, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Although he is competent to testify as to observable symptoms, such as chronic left wrist pain, his opinion as to its cause, including the extent to which any action or treatment by VA health care providers contributed to this medical problem, simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). There is no showing here of a misdiagnosis or any error in prescribed treatment. The Veteran has contended that the surgeon’s improper treatment during the first left wrist surgery necessitated a second surgery; however, as the statements are not supported by competent evidence (opinion evidence by an expert) of record, they are given no probative value. The preponderance of the evidence of record is against finding that the Veteran incurred additional left wrist disability caused by surgery/treatment provided by the VA. Accordingly, the claim for compensation under 38 U.S.C. § 1151 is denied and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant 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.