Citation Nr: 21064917 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 16-49 403 DATE: October 22, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of shingles to include left upper extremity postherpetic neuralgia is denied. FINDING OF FACT The Veteran did not suffer additional disability actually caused by VA's provision of medical services related to his residuals of shingles to include left upper extremity postherpetic neuralgia. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for residuals of shingles to include left upper extremity postherpetic neuralgia have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1969 to January 1971, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In July 2019, the Board remanded this matter for further development. The agency of original jurisdiction (AOJ) was asked to obtain an addendum medical opinion regarding the questions of additional disability and VA negligence pertaining to the claim at issue, and to attempt to procure a report from the VA Office of Inspector General (OIG) relating to a prior claim for compensation for myasthenia gravis. The AOJ obtained a medical opinion in May 2020. The Board finds that the medical opinion substantially complies with the prior remand directives. The AOJ sent the Veteran a letter asking him to submit a copy of the OIG report in January 2020. He responded in a letter received in February 2020, in which he stated that his prior claim for myasthenia gravis had nothing to do with his present claim relating to his left hand. He provided authorization for the AOJ to obtain his records from the Fort Wayne VA Medical Center (VAMC), but did not authorize VA to obtain records from the OIG. See 38 U.S.C. § 5103A(c)(1)(C) (providing that VA may obtain "any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain"). Given the dubious relevancy of the OIG report and the absence of authorization to obtain it, the Board concludes that the AOJ has substantially complied with the remand directives in that regard. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial compliance, as opposed to strict compliance, is required). The Board will proceed with a decision on the merits. Legal Criteria 38 U.S.C. § 1151 claims Compensation shall be awarded for qualifying claimants who suffer additional disability or death caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA. 38 U.S.C. § 1151. A claimant must establish actual causation in an 1151 claim. In other words, the evidence must show that the VA hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Mangham v. Shinseki, 23 Vet. App. 284, 286-87 (2009). If a Veteran does not show that actual hospital care, medical or surgical treatment provided by VA caused the claimed disability, then the question of proximate cause does not need to be addressed. Id. To determine whether an additional disability or death was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability or death. 38 C.F.R. § 3.361(c)(1). The additional disability must have been the result of injury flowing directly from the actual provision of VA care, treatment, or examination. Loving v. Nicholson, 19 Vet. App. 96, 100-01 (2005). The relevant issue is whether VA's direct actions caused harm. Disability or death that is due to the continuance or natural progress of the disease is not due to VA treatment unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(b), (c). If additional disability or death caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA is present, two principal criteria apply in determining whether it is compensable. First, the additional disability or death must not be the result of a veteran's willful misconduct. Second, the additional disability or death must have been caused by (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability or death, it must be shown that the medical treatment caused the additional disability or death, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of shingles to include left upper extremity postherpetic neuralgia The Veteran contends that he experiences residuals of shingles to include left upper extremity postherpetic neuralgia (additional disability) caused by VA medical care, and that VA was negligent when it failed to promptly diagnose and treat the condition in February 2010. See NOD, June 2014; VA Form 9, September 2016. The questions for the Board are (1) whether the Veteran suffered additional disability actually caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA and, if so, (2) whether such additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment, including failure to obtain informed consent. A review of the evidence is necessary. The Veteran sought treatment at a VA facility on February 21, 2010. The record shows that he reported a history of severe pain in the left arm associated with a cellulitis type rash for the past three to four days. The examining physician noted that the Veteran exhibited a small round blister the size of a small pea on the left palm and another 1/3 of that size on the fifth left finger in the palmar area. He noted that there was a diffuse red rash spreading on the medial aspect of the left hand. The physician diagnosed a cellulitis type rash and severe left hand/arm pain, and ordered a Toradol injection. The Veteran was seen for a follow-up on February 24, 2010. He reported less edema, less redness, and that the areas were drying up. The clinician examined the Veteran and found limited range of motion in the digits, various clear fluid filled bullae up to the elbow, slight edema, and minimal redness. She diagnosed "improving cellulitis." The Veteran visited his primary care team on March 2, 2010. He reported continued swelling in his digits, tenderness in his posterior left wrist, continued numbness in his left hand (described as a tingling sensation), limited left hand fine motor function, and unaffected gross movements. Upon examination, the Veteran exhibited a left arm with drying bullae, no redness or drainage, and minimal edema to the distal extremity. His range of motion was "grossly full" but with complaints of discomfort to the dorsal wrist. The Veteran returned on March 7, 2010. The clinician noted increasing left hand pain and worsening left hand infection, shown to cause an increased loss of sensation to the left upper extremity. The examining physician diagnosed a localized hand infection, prescribed a ketorolac tromethamine injection for the pain, and cefuroxime tablets for the infection. He noted that the Veteran was unable to take many pain medications as they made his diagnosed myasthenia gravis worse. The Veteran was seen again on several occasions in March and April 2010. He endorsed continued pain and discomfort in the left upper extremity. For example, on April 13, 2010, while hospitalized for an unrelated lung condition, he reported left hand swelling, redness, and pain since February 21, 2010. The clinician diagnosed left hand swelling, redness and tenderness in the left axilla and left supraclavicular swelling. He stated that he would get a surgical consult. The record shows a surgical consult from Dr. S.G. on April 14, 2010. Dr. S.G. examined the Veteran and recommended referring him to a hand, endocrine, and infectious disease specialist. Later that day, the Veteran was evaluated by the staff surgeon, Dr. I.C. The Veteran stated, among other things, that his finger edema had resolved, but that he still has swelling and weakness of the left hand and tenderness in the post left shoulder and axilla. He reported that he was currently living off of his savings but that he hoped to get disability payments for his left arm. Dr. I.C. diagnosed a "complex diagnostic problem, re. L hand/upper extremity" and recommended a more thorough workup at the Indianapolis VAMC. The Veteran was started on Gabapentin while still in the hospital on April 23, 2010. The Veteran continued to seek VA treatment for his left hand pain in later 2010 and 2011. For example, in November 2010, a physician noted that "in regard to his left hand pain, again no etiology has been elucidated so far. He had an ultrasound of his left upper extremity, MRI of the neck, again without identifying any etiology for his pain or paresthesia. I am going to go ahead and get an EMG. Actually, I wanted to go ahead and get an EMG ordered, but since he is going to be out of town he wants that done in a few months before he comes back to see me, which it will be scheduled for a few months from now." The Veteran saw a VA neurologist in November 2011. After reviewing the medical history and performing a neurological examination, the neurologist diagnosed a left hand abnormality that "could be a complex regional pain syndrome, but is more likely a post herpetic neuralgia with motor loss." He speculated that perhaps the Veteran's immunosuppression had something to do with the final outcome, but found that the Veteran is fortunate not to have developed generalized zoster. He indicated that he would review the Veteran's electromyography testing and recommend further treatment for neuropathic type pain. In December 2012, the Veteran filed an informal claim for compensation under section 1151. See VA Form 21-0820, December 2012. He asserted, among other things, that the Fort Wayne VAMC incorrectly assessed his condition as cellulitis, and that a VA hand surgeon in April 2010 recommended that he see a hand specialist, but his primary care doctor refused to write a consult. He stated that he is in constant pain and has limited functional ability in his hand. The Veteran underwent a VA examination in June 2013. The examiner found, among other things, that the Veteran had initially been diagnosed with a vesicular rash to the left hand thought to be cellulitis, but he continued to have significant burning pain long after the rash disappeared, and was eventually diagnosed with postherpetic neuralgia (hereinafter "PHN"). She stated that the only way to prevent PHN involves either treatment of acute zoster with antivirals or the use of a vaccine, and the only consistently successful method of treating PHN is to prevent it via prompt treatment of acute zoster and associated pain. She explained that initiation of antiviral therapy within 72 hours is effective in alleviating acute pain and preventing PHN. However, she found that the Veteran did not seek treatment within 72 hours because the Veteran reported symptoms beginning over one weekend and that he sought medical treatment the following weekend. In his June 2014 Notice of Disagreement, the Veteran asserted that the June 2013 VA examiner's rationale was based on factual inaccuracy as he sought care at a VA emergency room within 12 hours of developing symptoms of burning, redness, blisters, and gross edema of the left hand. He asserted that the treating physician failed to physically examine the affected extremity and order appropriate diagnostic testing, such as culturing the blisters. He claimed that there was no acknowledgement of the pain that he expressed as a burning sensation in the affected extremity and no pain medication was prescribed, and, in spite of repeated return trips to the VA emergency room, he was not prescribed any neurological pain medication. He stated that he was given Toradol injection on two different occasions in the emergency room, but this offered no relief of the pain. He stated that when admitted for an unrelated condition approximately six weeks later, his family questioned if the pain could be neurological in nature, and he passed this on to the treating physician and only then did he receive medication for neurological pain. Also, he claimed that he was referred to a hand specialist, an endocrine specialist, and an infectious disease specialist during a VA hospitalization, but these recommendations were not carried out. The Veteran submitted a VA Form 9 in September 2016. He contended, among other things, that he was seen less than 12 hours after his pain began, and that if VA had treated him for shingles sooner, he would still have the full use of his hand and would not have had so much pain that was not treated correctly. The AOJ obtained a medical opinion from Dr. J.W. in May 2020. She reviewed the claims file and opined that it is less likely than not that the claimed disability (residuals of shingles to include left upper extremity PHN) was caused by or became worse as a result of the VA treatment at issue. A review and discussion of the medical course of the Veteran's condition was provided. She explained that PHN is a complication of acute herpes zoster ("shingles") infection characterized by persistent pain and possible nerve dysfunction, representing a reactivation of the Varicella-zoster virus (VZV) or "chicken pox". The disorder results in variable presentation of pain along nerve endings and into the soft tissues, usually unilaterally in a single dermatome, with a vesicular rash before or after the pain manifests, in the same or an extended distribution. She observed that anyone with shingles risks development of PHN, but certain circumstances, including older age, more severe pain before or during the shingles outbreak, more severe shingles rash, and immunocompromised status make it more likely to develop PHN. Dr. J.W. further explained that the only known methods to help prevent or decrease the severity of PHN are antiviral therapy within 72 hours of symptoms and/or a vaccination to prevent reactivation. However, she observed that neither preventive method is 100 percent effective at preventing and/or decreasing the severity of PHN. She noted that vaccination to prevent the reactivation of the VZV virus is not recommended during or within 1 year of an acute shingles outbreak and does not affect PHN already in progress. Antiviral therapy has been shown to decrease the incidence and severity of PHN if administered within 72 hours of any symptoms. So, for example, if pain were the only symptom, the antiviral therapy must be administered within 72 hours of the pain to be effective. She explained that there is no medical evidence establishing that antiviral therapy has an effect on the development or progression of PHN outside of the 72 hour window. Dr. J.W. stated that treatments for nerve pain associated with shingles (neuropathic pain medications) can alleviate discomfort but have no effect on the development, progression, or long term consequences of PHN. She found that the record clearly shows that the Veteran was evaluated by VA on February 21, 2010, reporting 3-4 days since the onset of pain in his left hand. Although other symptoms had developed at some point after the initial pain, the Veteran's reported onset of pain was 3-4 days prior to the initial VA evaluation. Thus, Veteran's treatment for the shingles reactivation began outside the 72 hour window for effective antiviral treatment. She acknowledged the Veteran's contention that he was seen within 12 hours, but explained that the 12 hour period was not noted anywhere else in the record, and, regardless, the 72 hour window began with the pain onset, which occurred prior to the described "burning, redness, blisters, and gross edema." While noting that antiviral treatment outside 72 hours can be considered, Dr. J.W. found that the medical literature does not support that it would affect the outcome of PHN. She acknowledged that no discussion of shingles is included in the February 21, 2010 evaluation, but emphasized that the Veteran's presentation to the clinic was outside the 72 hour window, and antiviral therapy at that time would not have been clinically useful. She observed that the Veteran claimed that "the treating physician failed to physically examine the affected extremity and order appropriate diagnostic testing, such as culturing the blisters." However, she noted that the record clearly shows detailed documentation of the physician's examination of the Veteran's left arm and hand on February 21, 2010. She further observed that culturing of the blisters to detect virus or bacteria could have been performed, but the culture to confirm the presence of VZV requires about a week to show results, so would not have been helpful in the early management of the disorder or its progression. Dr. J.W. stated that secondary bacterial infection (manifesting as "cellulitis") can and does develop in association with or due to a shingles outbreak. Therefore, the fact that the VA clinician documented and treated cellulitis of the left upper extremity does not represent a misdiagnosis. Rather, it represents a partial diagnosis, with co-morbidly present cellulitis the only recognized diagnosis at the time. Based on the repeated evaluations after February 21, 2010, the Veteran's rash and redness of the left extremity did improve with antibiotics, though pain persisted, supporting that cellulitis contributed to the initial presentation. Later evaluations, occurring after the February 2010 presentation, established that the Veteran's continued pain was most consistent with PHN, meaning that the presenting condition on February 21, 2010 at least partially included shingles. Regardless, Dr. J.W. again emphasized that the Veteran's initial evaluation at VA occurred outside the 72 hour window for effective antiviral therapy, and the lack of a shingles diagnosis in February 2010 did not alter the outcome of the condition. Thus, she concluded that the Veteran did not develop residuals of shingles (additional disability) due to VA's action or inaction, but rather as a consequence of the shingles infection itself. Dr. J.W. addressed each of the Veteran's contentions highlighted by the Board's July 2019 remand directives, but persuasively explained that it would not alter her opinion. See BVA Decision, July 2019. As to the first claim, she found that the 2013 VA examiner used a retrospective timeline from a general surgery consult in April 2010. While not necessarily an error, she explained that the timeline was presumably not as accurate as the evaluation at point of care on February 21, 2010. Although the Veteran claimed that there was no acknowledgment of the pain he expressed as a burning sensation in the extremity, the VA provider documented the Veteran's pain on February 21, 2010 as a "tingly/pressure" type pain, which is still consistent with neuropathic pain. Dr. J.W. noted that the VA providers were hesitant to proceed with pain medication out of concern that it would aggravate the Veteran's myasthenia gravis. Treating the diagnosed cellulitis with antibiotics was pursued to resolve the Veteran's pain by treating the underlying condition. Additionally, the record shows that he was treated with the anti-inflammatory Naproxen and Toradol injections. She noted that the Veteran's myasthenia gravis was a persistent concern and that it limited pain treatment options as an outpatient. Dr. J.W. recognized that the Veteran was treated with a variety of medications, including Toradol, Naproxen, Baclofen, and Gabapentin from February to April 2010. She noted that, based on her review of the records, the treating physicians considered pain medication options, but did not aggressively pursue pain management due to legitimate risks of exacerbation of the Veteran's myasthenia gravis. Further, she noted that earlier treatment with neuropathic pain medication would in no way alter the course or long term sequelae of the Veteran's left upper extremity condition. The use of gabapentin beginning in April 2010 was prudent because the Veteran was already an inpatient for an unrelated condition, and could be appropriately monitored. Regarding the Veteran's claims that he was referred to a specialist in April 2010 but the referrals were not carried out, Dr. J.W. explained that Veteran's admitting provider in April 2010 asked a general surgeon for a consult, and the surgeon recommended consults to hand specialist, an endocrine specialist, and an infectious disease specialist. Based on review of the record, Dr. J.W. found that there was no medical reason to consult an endocrine specialist, and the admitting provider did speak to an infectious disease specialist during the April 2010 hospitalization. She further noted that the Veteran did eventually see an orthopedic hand specialist in June 2011, but no surgical condition of the left hand or wrist was ever identified, so a consult in April 2010 would have yielded no additional results. Lastly, Dr. J.W.'s opinion addressed the question of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. She found that it was less likely than not, and provided a persuasive rationale. In any case, as she found no additional disability due to VA treatment, the first element of an 1151 claim has not been met, and proximate cause need not be addressed. The Veteran's representative submitted a brief in September 2021. She contended, among other things, that there had been a "misdiagnosis" and lack of treatment that led to the Veteran's current condition. She criticized the conclusions of Dr. J.W., and contended that the treatment might have had a positive effect, but it was never offered because of the continued misdiagnosis. She stated that the examiner blamed the Veteran for failing to present his condition properly, but stated that it is the job of the medical professional as a diagnostician to ask the relevant questions. After careful review, the Board finds that the evidence does not show that the Veteran suffered additional disability actually caused by VA's hospital care, medical or surgical treatment, or examination. Dr. J.W. found that it is less likely than not that the Veteran suffered additional disability as a result of VA medical care. Her opinion was thorough, persuasive, and consistent with her review of the claims file and medical expertise. The Board finds it to be of significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The record does not show that the Veteran's residuals of shingles in the left upper extremity are actually caused by VA hospital care, medical or surgical treatment, or an examination. 38 C.F.R. § 3.361(b), (c). The competent medical evidence has found that the Veteran did not suffer additional disability as a result of VA's action or inaction. Therefore, as the element of additional disability actually caused by VA medical treatment is not met, the claim must fail as a matter of law. The Board has considered arguments from the Veteran and his representative that he suffered additional disability as a result of VA care. However, lay persons are not qualified to assess standards of care and other medical considerations as to whether the Veteran suffered any additional disability caused by VA's care of his left arm disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes that there is no competent medical evidence of record that supports that the Veteran suffered an additional disability due to VA medical care. Regarding the Veteran's contentions that he sought treatment within 12 hours of his symptoms, the Board affords higher probative weight to the contemporaneous medical evidence, which documented that his symptoms began from three to four days prior to seeking treatment. The contemporaneous evidence obtained during medical treatment is considered more probative than the lay history provided by the Veteran after the fact during his compensation claim. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a Veteran). Although the representative asserted that there had been a misdiagnosis of the Veteran's shingles, Dr. J.W. explained that this is not correct under the appropriate medical standards. In sum, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim for compensation under section 1151 for residuals of shingles to include left upper extremity PHN. Therefore, the claim must be denied. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.