Citation Nr: 21075037 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-08 391 DATE: December 17, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right arm neurological disorder due to treatment at the Nashville VA Medical Center (VAMC) in April 2011 is denied. FINDING OF FACT The Veteran does not have any additional right arm disability as a result of intravenous (IV) infiltration during an April 2011 procedure at the Nashville VAMC. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right arm neurological disorder due to IV infiltration during an April 2011 procedure at the Nashville VAMC have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In July 2019, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). A veteran who suffers 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(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The Federal Circuit has held that the causation element of section 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, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, additional disability caused by a veteran's failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) 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 (2) an event that was not reasonably foreseeable. 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, medical or surgical treatment, or examination was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(1). Regarding reasonable foreseeability, whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements a veteran's disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that compensation under 38 U.S.C. § 1151 for a right arm disorder, diagnosed as carpal tunnel syndrome, due to IV infiltration during an April 2011 procedure at the Nashville VAMC is not warranted. During the February 2019 hearing, the Veteran clarified that he is not claiming direct service connection for a right arm disorder based on an in-service shrapnel injury. Rather, he has contended that he has current right arm problems, including nerve damage, tingling, pain, decreased grip strength, swelling, and stiffness, that was incurred during or caused by urological procedures in the spring of 2011. Specifically, he has claimed that he developed carpal tunnel syndrome after an IV infiltrated his right hand during an April 26, 2011, ureteroscopy and stent placement. See January 2013 statement; January 2016 VA examination report; February 2019 Bd. Hrg. Tr. The record shows that the Veteran underwent an outpatient left ureteroscopy with laser lithotripsy and left stent placement to treat a left renal pelvis stone on April 26, 2011. The record also shows that he signed an informed consent form, and it was noted that he was informed of the risks, benefits, and alternatives. A surgery operative report noted no complications. The anesthesiologist noted that, at emergence, the Veteran's IV was noted to be infiltrated. The IV was replaced, and postanesthesia care unit (PACU) nurses applied warm compresses to the area. An anesthesiologist discharged the Veteran from the PACU. In the discharge note, the anesthesiologist noted that the Veteran's right-hand site of the IV infiltration was improved and less tense per the nursing report. The Veteran was instructed to keep his hand elevated and that the swelling should decrease significantly in the next 24 hours. He was instructed to return to the hospital if his pain significantly worsened, he lost movement or sensation in the hand, or if he had any other signs of vascular or nerve compromise. During an April 27, 2011 post-procedure follow-up phone call, the Veteran's wife stated that the Veteran's right arm was swollen from where his IV was placed up to his elbow. The nurse instructed the Veteran's wife to apply warm compresses to the area and to elevate the arm above the level of the heart. She was instructed to take the Veteran to the emergency room if his arm did not improve soon. The nurse indicated that she informed the anesthesiologist. On April 27, 2011, the anesthesiologist called the Veteran at home to follow-up, but he could not be reached. The anesthesiologist left a message for the Veteran to call with any post-operative concerns. It was noted that a PACU nurse told the anesthesiologist that the Veteran was complaining of pain and redness in his arm where the IV was inserted. The anesthesiologist indicated that the Veteran was informed that the best thing to do was to have his arm checked close to where he lived or to come to the VA emergency room. In a June 2011 VA urology note, the Veteran reported that he was doing well since his surgery. His only complaint was persistent pain and swelling of the right forearm where his IV infiltrated. Upon examination, soft edema of the right forearm and dorsal hand was noted. The urologist ordered an ultrasound of the right upper extremity, which was negative for deep vein thrombosis. In a September 2011 VA primary care note, the Veteran complained of some problems with his right hand where an IV was inserted during a kidney stone removal in May 2011. He stated that he had nerve damage in that hand. In a September 2011 VA addendum note, the nurse documented the Veteran's report that he had pain to the touch in his right hand to above his elbow and difficulty using that hand after a recent IV for a renal stone procedure. In a May 2012 VA primary care note, the Veteran complained of right-hand pain resulting from IV infiltration during the last year. He described hand pain, weakness, and difficulty with grip strength, and he denied any improvement over the past year. He also denied any autonomic syndromes of the hand, such as sweating or skin changes. No edema was noted on examination. His right hand grip strength was 4/5, and wrist flexion and extension were 4/5. Decreased sensation to light touch was noted on the right side. There was no thenar or hypothenar atrophy. The physician noted that the Veteran's neurological complaints had an unclear etiology. He indicated possible causalgia neurologic symptoms confined to the right hand only, but he noted that there were no skin or hair changes. A June 2012 electromyogram (EMG) report documented the Veteran's complaint of right-hand pain and weakness since an IV infiltrated his right hand or wrist area. He stated that he had marked swelling of the right hand and forearm, that he noticed intermittent numbness of the right first through fourth digits, and that there was weakness with his right-hand grip. He noted that he worked with his hands setting stone, but that he had not been able to work due to those symptoms. An examination showed that his deep tendon reflexes were 2/2 in the biceps and brachioradialis and 1/1 in the triceps. There was no muscle wasting in the right upper extremity. His strength was 5-/5 right grip and 5/5 APB and dorsal interossei in the hand with 5/5 strength in the more proximal groups. A monopolar needle study showed insertional activity was normal in the right upper extremity biceps, triceps, pronator teres, extensor indicis, abductor pollicis brevis, and first dorsal interosseous muscles, and no spontaneous activity was recorded at rest. Activational motor units were recruited in proportion to force generated, and the motor unit configuration was normal in all of these muscles. Right medial motor distal latency was mildly prolonged. Right ulnar motor, dorsal cutaneous sensory, and digital sensory conduction studies were normal. Right radial motor, sensory, and digital conduction studies were normal. Needle examination of multiple muscles in the right upper extremity, including distal muscles supplied by the radial, medial, and ulnar nerves was normal. The conclusion was an abnormal study. There was electrical evidence of a right medial mononeuropathy at the level of the wrist, which was demyelinating in nature and consistent with mild to moderate right carpal tunnel syndrome. There was no evidence of a right ulnar or radial mononeuropathy or of a sensory motor polyneuropathy in the right upper extremity. There was also no evidence of a right brachial plexopathy or right C5-T1 radiculopathy. In a July 2012 VA primary care note, the Veteran reported that he developed a right-sided upper extremity neuropathy after having an IV infiltrate during a procedure. An EMG suggested medial nerve involvement with no apparent problems with the radial or ulna nerve. The Veteran was diagnosed with medial nerve involvement and possible carpal tunnel syndrome, and he was prescribed a wrist splint. The Veteran was instructed to contact the physician in three to four weeks regarding any changes in symptoms. He also noted that an orthopedic referral should be considered if there was no improvement with the wrist splint. In a July 2012 VA treatment note, the Veteran was fitted for a right wrist splint. He complained of tingling and numbness since an IV was stuck in his right hand. No deformities or edema were noted. In a November 2012 VA primary care note, the Veteran presented with long-standing right-hand weakness and pain. The physician noted that an EMG revealed medial nerve prolonged latency time suggestive of carpal tunnel. Upon examination, there was no edema present in the extremities. During a January 2013 VA orthopedic surgery consultation, the Veteran reported a one and a half year history of right-hand pain, which started after an IV infiltrated following a urologic procedure for kidney stones. He stated that he had symptoms of carpal tunnel syndrome involving clumsiness with his hands, decreased grip strength, numbness, pain at night, and pain exacerbated by using a phone, reading, and driving. The Veteran's wife related that the Veteran's symptoms were not present prior to the IV infiltrate and that she was told that the IV infiltrate was what caused the Veteran's carpal tunnel syndrome. The surgeon noted that the Veteran had clinical and objective findings of carpal tunnel syndrome and offered the Veteran a carpal tunnel release. The surgeon stated that the Veteran was not interested in surgery, but he was fixated that the IV infiltrate caused his pain. The surgeon also indicated that the Veteran may also have an aspect of C7 radiculopathy, which caused shooting pains down his hand from his shoulder in a C7 distribution and could be contributing to the Veteran's dorsal hand and middle finger pain. A January 2013 magnetic resonance imaging (MRI) study of the right forearm showed edema and enlargement of the ulnar nerve as it entered the cubital tunnel. In an April 2014 VA primary care norecordte, the Veteran complained of right-hand tingling and numbness into the third and fourth fingers related to an infiltrated IV that caused significant swelling and nerve compression. The Veteran reported one-sided numbness or tingling in his right hand since the IV infiltrated his right hand. The physician indicated that a prior work-up included a nerve conduction study and that the Veteran was told that he may need surgery to correct this concern, but that the Veteran was not inclined to have any more procedures. A neurological examination included motor testing which showed strong and equal grip of left and right hand. Sensory was intact to light touch at both hands with less sensation in the dorsum of the right hand. In this case, the most probative evidence shows that he does not have additional right arm nerve damage as a result of the IV infiltration. In a September 2013 VA examination report, the examiner noted that the record showed that the Veteran had a right-hand IV infiltration on April 26, 2011, and the issue was appropriately addressed by anesthesia. They recommended that the IV be removed, that the hand be elevated, and that warm compresses be applied to the area. After the injury, the Veteran's wife called on April 27, 2011, to report that the Veteran's right upper extremity was swollen up to his elbow secondary to the IV infiltration. The issue was addressed again, and the Veteran's wife was told to go to the emergency room if the problem did not resolve. Records showed that another telephone call was made to the Veteran to follow-up on the IV issue a few days later. The Veteran was unable to be reached, and a message was left that, if he needed to have the arm rechecked, he should be seen in the VA emergency room or by a local doctor. The VA examiner noted that the Veteran had another urologic procedure on May 9, 2011, and at that time, there was no mention of any other IVs infiltrating or any mention of the previous IV site on the right hand looking abnormal and/or causing any concern. The examiner noted that, over one month later, the Veteran was seen in the urology clinic at which time he complained of pain and swelling in his right forearm where his IV had infiltrated. The urology record documented soft edema of the right forearm and hand, and an ultrasound was negative for deep vein thrombosis. The examiner observed that the Veteran complained of right hand and elbow pain and difficulty using his right hand in a September 2011 VA primary care record; however, a January 2012 VA urology record stated that the right upper extremity edema seen in June 2011 had improved. The examiner noted that the Veteran had further complaints of right-hand weakness in May 2012, followed by normal x-rays of the right hand. The examiner reported that the only abnormality seen in a June 2012 EMG was a mild to moderate right median neuropathy at the wrist consistent with carpal tunnel syndrome. In addition, a VA orthopedic surgeon diagnosed the Veteran with carpal tunnel syndrome in January 2013. A 2013 MRI of the right forearm further showed a nonspecific finding of some mild thickening of the ulnar nerve as it entered the cubital condyle. The September 2013 VA examiner opined that the providers at the VAMC did not show signs of negligence when addressing the Veteran's IV infiltration. She noted that standard of care was practiced when the providers recommended removal of the IV, warm compresses, and elevation. In addition, she stated that good care was provided at the urology clinic follow-up approximately two months after the IV infiltration incident when the provider ordered an ultrasound of the right upper extremity to rule out a deep vein thrombosis. The examiner further noted that a causal relationship between the IV infiltration and the right carpal tunnel syndrome at the right wrist could not be established in this case. She indicated that the Veteran's right carpal tunnel syndrome was diagnosed a little over one year after the IV infiltration. She noted that an IV infiltration was not a common cause of carpal tunnel syndrome and that carpal tunnel was more commonly seen as a result of repetitive use of a particular wrist or hand. She indicated that more common causes had to do with one's occupation, such as occupations which required a lot of typing, welding, hammering, or working with hands. She noted that other contributing factors to carpal tunnel syndrome included obesity, diabetes, and hypothyroidism. In addition, the VA examiner noted that the EMG study of the right upper extremity was not consistent with any pathology of the right upper extremity other than the right carpal tunnel syndrome. She noted that an MRI of the right forearm did show some mild thickening of the ulnar nerve at the elbow, but the EMG did not show ulnar nerve neuropathy. In other words, she explained that the mild thickening was a nonspecific finding was of uncertain significance. She related that it could not be proven that the ulnar nerve finding on MRI was secondary to the IV infiltration of the right hand either. The Veteran submitted three private opinions in support of his claim. In a March 2016 private treatment note, Dr. D.M. (initials used to protect privacy) noted that the Veteran had symptoms consistent with carpal tunnel syndrome and had an EMG that showed carpal tunnel syndrome. The physician opined that there was a likely causality between the Veteran's carpal tunnel syndrome and the IV infiltration if the symptoms worsened soon after the infiltrate. He also noted that swelling was known to cause carpal tunnel symptoms. In a March 2016 private opinion, the Veteran's treating chiropractor of three years stated that he found some weaknesses through various muscle tests on the Veteran's right arm. The chiropractor noted that the Veteran's history showed that his problem started after an IV infiltration in 2011 and that he had only gotten temporary relief with chiropractic adjustments. In another March 2016 opinion, Dr. J.Q. (initials used to protect privacy) stated that the Veteran had chronic right median nerve neuropathy, which was verified in a May 2013 nerve conduction study. He noted that the development of this condition occurred following IV infiltration in 2011. He opined that it was more likely than not that the Veteran's neuropathy developed as a result of the IV infiltration in 2011. The Board requested a medical opinion to address the Veteran's contentions and the conflicting medical evidence of record. The November 2019 VA examiner opined that the Veteran's contention that he developed additional disability in his right arm was less likely as a result of the April 2011 IV infiltration. The examiner noted that a review of the records showed that the Veteran was diagnosed with right carpal tunnel syndrome by EMG study in June 2012. The examiner indicated that a follow-up note dated on April 29, 2011, three days after the IV infiltration, documented the Veteran's complaints of pain and redness in his arm where the IV was inserted, but that he had no immediate neurologic complaints, such as numbness, tingling, or weakness of the muscles. The examiner also noted that the record showed several entries relative to pain or tenderness in his right hand in June 2011, September 2011, January 2012, May 2012, July 2012, and November 2012. The examiner further observed that a September 2011 VA primary care nursing record stated that there was no edema on the extremities, but that the Veteran's carpal tunnel syndrome symptoms persisted. The examiner explained that IV infiltration causes edema of the tissues due to accumulation of fluids between the cells and that edema may cause compression of the tissues, including the median nerve based on the anatomical position. However, the examiner noted that this edema fluid is spontaneously resolved as the body reabsorbs the fluid and returns it to general circulation in a matter of days. He noted that it does not cause permanent damage. The examiner reasoned that the Veteran's initial complaints of pain and swelling were due to the edema as a result of the IV infiltration, but it did not represent carpal tunnel syndrome at that time. In addition, the examiner related that the record shows that the Veteran's post-service employment history was in stucco and stonework, which required repeated lifting that may stress the hands and other joints used for lifting. The November 2019 VA examiner's findings indicate that immediate post-operative follow-up reports do not reflect that the Veteran had carpal tunnel syndrome at that time. The September 2013 and November 2019 VA examiners' findings are also consistent with the treatment records that show that any right arm swelling after the IV infiltration resolved and that his current problems are related to another factor. For example, May 2012 and July 2012 VA treatment records indicated no edema. The Board acknowledges the three March 2016 private opinions submitted in support of the claim. However, none of those opinions were supported by a complete review of the record or by adequate rationale. Indeed, they did not address the treatment records showing that the Veteran continued to have symptoms after the edema resolved or that there were no immediate neurologic complaints following the infiltration. Nor did they address the Veteran's post-service employment. On the other hand, the September 2013 and November 2019 VA examiners performed physical examinations of the Veteran and reviewed the evidence in the claims file, including the Veteran's treatment records and his contentions. The Board finds that these opinions, taken together, address the central medical issues in this case, are based on an analysis of the evidence and current medical understanding, and are therefore entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (an examination is not rendered inadequate where the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion"); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In summary, the most probative evidence shows that, although the Veteran has been shown to have disability following the April 2011 IV infiltration, the evidence does not establish that any additional disability was caused by the IV infiltration. His right arm swelling resolved, and his current right upper extremity neurological problems have been assessed as resulting carpal tunnel syndrome unrelated to the IV infiltration. If the Board finds that there is no "actual causation," it is unnecessary to address the next step of proximate causation (i.e., negligence and reasonable foreseeability). That is, because the evidence of record does not demonstrate additional disability 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); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); see also 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Board has considered the Veteran's statements, including his competent reports of observable symptomatology, such as pain and numbness. Nevertheless, as to the question of whether he has additional disability for purposes of § 1151 benefits, even assuming that he is competent to opine on this medical matter, the Board finds that the September 2013 and November 2019 VA examiners' opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by rationale based on such knowledge. The VA examiners reviewed the claims file and considered the Veteran's reported history and lay statements. Based on the foregoing, the Board concludes that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right arm neurological disorder due to treatment at the Nashville VAMC in April 2011 have not been met, and the weight of the evidence is against the claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.