Citation Nr: 21003369 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-26 419 DATE: January 21, 2021 REMANDED Entitlement to service connection for a right wrist disability is remanded Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right wrist surgery for a ganglion cyst is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active military service from September 1979 to September 1983 and more recently from February 2010 to March 2011. In support of these claims, the testified recently at a hearing in October 2020 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Partly because of the hearing testimony and additional supporting evidence submitted a few days prior to the hearing and immediately after it, the Board is remanding these claims for further development.   1. and 2. Entitlement to service connection for right wrist surgery residuals, including § 1151 compensation, is remanded. The Veteran contends that, during his second period of active service, while stationed in Afghanistan (April 2010 to February 2011), he developed a ganglion cyst on his wrist. March 2014 VA electronic correspondence reflects that service treatment records (STRs) for this Veteran were unavailable. The claims file includes what appears to be a complete record for his first period of service. He also submitted two records from his second period of active service (but related to his low back disability that is being claimed additionally). Since he was in the National Guard, it is possible that the state has additional STRs. Thus, VA should contact his state’s adjutant general to attempt to obtain records that may tend to support his claim for service connection for a right wrist disability on a direct-incurrence basis. The Veteran also is claiming entitlement to § 1151 compensation because of what he believes is additional disability owing to VA surgery he underwent for his right wrist disability. According to this statute, when there is no willful misconduct by a Veteran, additional disability resulting from VA hospital care furnished the Veteran will be compensated in the same manner as if service connected, if the disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event that was not reasonably foreseeable. See also 38 C.F.R. § 3.361. Post-service, a May 2011 VA clinical record reflects that the Veteran had a 2-3cm mass on the radial aspect of his wrist that was consistent with a ganglion cyst. He was referred to plastic surgery. The earliest VA clinical record is from May 2011, however, it does not reflect that it is an initial encounter; thus, there may be earlier pertinent records that VA should attempt to obtain so that they, too, may be considered in deciding this appeal.   A November 2011 VA operative record shows the Veteran had surgery for his volar radial right wrist ganglion cyst. A complication/unexpected occurrence was that a “short segment of distal radial artery was removed along with the cyst” because the surgeon “was unable to delineate one from the other and could not remove the cyst without injuring a short segment of radial artery.” Post operatively, the Veteran’s Allen test was negative. A June 2014 Disability Benefits Questionnaire (DBQ) indicates the Veteran reported tingling, decreased hand sensation, and numbness if he reclines on his right shoulder. He had normal hand strength. Upon examination, he had mild incomplete paralysis of the median nerve. The examiner found it less likely than not the Veteran’s ganglion cyst was related to his first period of active service but did not also discuss whether it was related, instead, to his second period. A December 2016 Bassett Healthcare Network shows the Veteran reported that, post service, his hand will frequently go numb when he uses it, that he has pain when lying on his right arm, that he has exquisite tenderness to palpation of the scar, and that he has diminished grip strength. The examiner (Dr. Mannal) was concerned about past damage to the radial artery during surgery and wanted an ultrasound to evaluate the vasculature of the wrist and the palmar arch to ensure they are intact and patent. A January 2017 record notes that an ultrasound revealed a “tortuous right Radial artery with an increase in Doppler flow velocity and segments of monophasic flow pattern as compared to the contralateral side. A probable Ganglion cyst noted in the wrist area.” An electromyograph (EMG) confirmed the Veteran had carpal tunnel syndrome (CTS). On March 14, 2017, he resultantly had an open carpal tunnel release. The Board consequently cannot determine what extent of the Veteran’s symptoms are related to or the result of his prior 2011 surgery (i.e., were the 2017 symptoms and carpal tunnel surgery due to the earlier 2011 surgery). Thus, a medical opinion is needed to assist in making this determination.   Aside from that, if the Veteran is not awarded service connection for his right wrist disability on a direct- incurrence basis, he would be entitled to compensation, still, if the symptoms experienced due to his 2011 surgery were caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or by an event not reasonably foreseeable. Thus, VA must attempt to obtain and associate with the claims file documentation of his informed consent for his surgery in 2011, as well as a medical opinion regarding the level of care provided in 2011. 3. Entitlement to service connection for a low back disability is remanded. The Veteran also testified during his October 2020 hearing before this Board that, while in service, he injured his low back when he fell off a wall, and that he continued to have chronic back pain in the 1980s, 1990s, and even to date. The STRs confirm that, in May 1980, the Veteran fell off a wall and injured his back and neck. One May 1980 STR notes the pain was in his neck and upper back. A June 1980 STR, however, notes mid thoracic and lumbar pain. Another June 1980 STR notes thoracic pain had resolved but that he still had neck pain. A July 1980 record notes that, two months earlier, he had fallen off a wall; the resultant assessment was chronic low back pain. Another July 1980 STR notes neck pain and back pain for three months after falling off a wall. X-rays showed no significant abnormality; he was to keep an orthopedic appointment for cervical and lumbosacral spine (“c-spine LS spine”) complaints and to take Parafon forte. Subsequent records note a complaint referable to the mid upper back (February 1981), low back pain off and on since injuring the back in 1980 (April 1982), muscle spasm of the back (November, December 1982), and recurrent back pain and muscle spasms that was intermittent and resolved (July 1983 Report of Medical History for separation (Expiration of Term of Service (ETS)). The Veteran separated from his first period of active service in September 1983. His November 1985 Report of Medical History for enlistment in the Reserves shows he denied recurrent back pain. He indicated he was employed as a truck driver. There are no clinical records in the next 27 years noting back complaints. The Veteran has indicated that he sought treatment on numerous occasions during those intervening years, including being transferred by ambulance. During his hearing before this Board, he testified that his community hospital since had been bought out by another hospital (Bassett Healthcare Network), and he did not believe that it had the resources to maintain the community hospital records from when he had sought treatment. Records in the 27 years since his active service ended in 1983 would potentially support his contention of chronic problems. Thus, VA should attempt to obtain these additional records. The Veteran had additional active service from February 2010 to March 2011. A June 2010 STR, when he was deployed to Afghanistan, indicates he was seen for lower back pain and muscle spasm. A June 2014 DBQ contains an opinion of the examiner that it is less likely than not the Veteran had a then current low back disability causally related to his service. The examiner’s rationale includes mention that there were no records corroborating chronic back pain since service in 1983. However, as already pointed out, the Veteran had complaints of pain and muscle spasm in June 2010, while on active duty. An October 2010 DA Form 2173 (Report of Medical Examination and Duty Status) explains the June 2010 incident (when he bent down and felt a pinch in his lower back when he stood back up) was during a period of duty. The Board also sees the 2014 DBQ diagnosis was of low back “pain” and that imaging studies were not obtained. A more recent July 2020 private chiropractic record shows the Veteran had low back pain after lifting a tarp over his head the prior month (so in June 2020). But he reported having intermittent pain (off and on) since a 1980’s injury and that the pain has happened more and more randomly over the years. The Veteran consequently should be provided another medical examination, including with imaging studies if needed, to determine his current back disabilities, if any, and their origins in relation to his active military service. Accordingly, these claims are REMANDED for the following action: 1. Contact the New York adjutant general (or another state if the Veteran served with another state) and request his STRs for all service, including from 2010-2011. Document all requests as well as all responses in the claims file. Also appropriately notify him and his attorney if unable to obtain these records. 2. Ask the Veteran to complete a VA Form 21-4142 for Bassett Healthcare Network and all ambulance companies related to treatment for his back between September 1983 and February 2010. If he provides this necessary authorization, obtain these additional records. Document all requests for these records, as well as all responses, in the claims file and appropriately notify him and his attorney if unable to obtain these additional records 3. Associate all VA clinical records from September 1983 through May 2011 with the claims file, including any Informed Consent for the Veteran’s 2011 right wrist surgery. 4. After obtaining these and any other relevant records, obtain a supplemental clinical opinion to the 2014 DBQ for the Veteran’s wrist. The examiner is asked to answer the following questions: (A) Is it as likely as not (50 percent or greater probability) that a ganglion cyst observed by a VA provider in May 2011 onset during the Veteran’s period of service from February 2010 to March 2011? (B) Is it as likely as not (50 percent or greater probability) the Veteran’s symptoms on examination in 2014 were due to ganglion cyst surgery in 2011? (C) Is it as likely as not (50 percent or greater probability) the Veteran’s 2017 CTS surgery was due to his earlier surgery in 2011? (D) Does the Veteran have current symptoms (at any time from October 2013 to the present) referable to his right wrist that are due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in provision of care (i.e., did VA fail to exercise the degree of care that would be expected of a reasonable health care provider?) To assist in making these important determinations, the examiner should consider the pertinent evidence of record, including especially: a.) the Veteran’s statement that he had a ganglion cyst in service that was drained in service; b.) a May 2011 ganglion cyst noted in his VA records; c.) a November 2011 VA operative record; d.) the June 2014 DBQ; e.) the December 2016 Bassett Healthcare Network record; f.) January 2017 Bassett Healthcare ultrasound/EMG findings; and g.) The Veteran’s March 2017 open carpal tunnel release. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. *If adequate opinion and rationale cannot be provided without actual examination of the Veteran, schedule him for an examination, but this is left to the reviewing clinician’s discretion. 5. Also schedule the Veteran for an examination of his low back. X-rays and/or MRI should be obtained. The examiner should answer the following question: Is it as likely as not (50 percent or greater probability) the Veteran has a current low back disability that was incurred in service or aggravated by either period of active service (September 1979 to September 1983, and/or April 2010 to February 2011)? The examiner should consider the pertinent evidence of record, including: a.) the numerous STRs noting back complaints after a fall from a wall (e.g., May, June, July 1980; February 1981; April, November, December 1982 noting negative X-ray but muscle spasms); b.) the Veteran’s July 1983 Report of Medical History noting his back complaints had resolved; c.) the November 1985 Report of Medical History for enlistment in the Reserves showing he denied recurrent back pain but also indicating that he was employed as a truck driver; d.) the June 2010 active duty STR noting that he was seen for lower back pain and a muscle spasm after bending down; e.) the 2014 DBQ; f.) 2020 private chiropractic records noting the recent onset of back pain, but that he reported having had intermittent pain since the 1980s; and g.) the level of severity of any current disability as to whether it is indicative of onset during his service. When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.