Citation Nr: 21007441 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-30 172 DATE: February 9, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage is denied. Entitlement to compensation under 38 U.S.C. § 1151 for left side nerve damage is denied. FINDINGS OF FACT 1. The preponderance of evidence is against a finding that the Veteran’s left arm condition was caused or aggravated by his lung surgery, was the result of carelessness, negligence, lack of proper skill, error in judgement, or any similar instances of fault on the part of VA or a result of an event not reasonably foreseeable. 2. The preponderance of evidence is against a finding that the Veteran’s left side disability was the result of carelessness, negligence, lack of proper skill, error in judgement, or any similar instances of fault on the part of VA or a result of an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage have not been met. 38 U.S.C. §§ 1141, 5107; 38 C.F.R. §§ 3.159, 3.361. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for left side nerve damage have not been met. 38 U.S.C. §§ 1141, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1974 to April 1977. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. This matter has previously come before the Board. In January 2020, the Board remanded this issue for additional medical examination and opinion to be conducted by VA. In March 2019, the Veteran was afforded a new VA examination, and the examiner commented on the Veteran’s in-service acoustic trauma as well as other factors found to contribute to the Veteran’s hearing loss. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). 1151 Eligibility The Veteran contends that he has experienced left arm and left side nerve damage as a result of VA’s failure to timely diagnose and properly treat a lung infection, which resulted in emergency surgery. The Veteran argues that the surgery caused nerve damage to his left arm and the left side of his torso, which he would not have if VA had timely diagnosed and treated his lung infection. Specifically, the Veteran argues that his VA doctor never gave him a correct diagnosis, and that she should have performed a more thorough sputum culture test. The Veteran has also argued his VA providers should have prescribed stronger antibiotics than what the Veteran received. See September 2019 Hearing Transcript; and see April 2014 Correspondence. Under 38 U.S.C. § 1151, compensation shall be awarded for a Veteran’s qualifying additional disability in the same manner as if such additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability is carelessness, negligence, lack of proper skill, error in judgement, 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(a). To determine whether a Veteran has additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, upon which the claim is based to the Veteran’s condition after such care or treatment has stopped. 38 C.F.R. §§ 3.361 (b), 3.358 (b)(1). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran’s additional disability. Merely showing that a veteran received care or treatment and that the Veteran has an additional disability does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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 (d) requires that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment caused the Veteran’s additional disability or death; and (a) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (b) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. See 38 C.F.R. § 3.361 (d). In the instant case, the Veteran does not contend that any procedures were performed without his consent. The Veteran’s lung symptoms onset in approximately June or July 2012 as a cough. His symptoms advanced quickly, ultimately requiring emergency surgery in September 2012 after treatment at multiple medical facilities. Because the Veteran’s claims assert that VA was negligent by not providing a timely diagnosis, a summary of the course of treatment leading up to surgery is appropriate here. At his hearing before the Board, the Veteran testified that he was first seen by VA for pain in his chest on approximately August 5, 2012. He testified that because he had reported having chest pain, he was given an echocardiogram on that date by a VA doctor with a long last name and who called himself “Dr. Tete.” The Veteran indicated that he and his attorney had never found records from that visit. The Veteran stated that he returned to the clinic on August 13, 2012 and at that time saw his primary care physician, Dr. L.S. See September 2019 Hearing Transcript. The medical records do not show any examination on August 5, 2012, as the Veteran testified. Rather, the records show that on August 13, 2012, the Veteran came to a VA facility with initial complaints of chest pain. He was seen by a Doctor T.K. (a name the Board observes is similar to “Tete”), who performed an echocardiogram yielding normal results. Blood and urine samples were collected. Dr. T.K. diagnosed chest wall pain, and prescribed pain relievers. The Veteran was advised to return to the clinic as necessary for any increased symptoms. Treatment records from that visit state plainly that “Patient does not want X-Ray chest now.” See August 2012 Medical Treatment Record – Government Facility. The Veteran disputes that he declined an x-ray on his initial visit, arguing that his doctor discouraged him from undergoing x-rays, and he was only following her lead. He testified that when he visited the clinic from August 13 through the next several followup visits, he was treated by Dr. L.S, who was then his primary care physician. The Veteran contends that Dr. L.S. told him on August 13 that “Protocol requires me to ask you if you want an x-ray. And I asked her, well, you just said there’s nothing wrong with me, do I need an x-ray. And she said, only if you want to waste some more time. And then I said, well, then I don’t want an x-ray if I’m going to be wasting somebody’s time.” See September 2019 Hearing Transcript. The Veteran has raised similar arguments throughout his appeal. In April 2014, the Veteran wrote that after Dr. L.S. listened to his breathing and found no problems, she asked “Do you want an X-ray?” He replied, “If there’s nothing wrong with me do you think I need one?” to which she replied, “It’s a waste of time, just like you coming in without an appointment to see me because of a cough.” See April 2014 Correspondence; and see April 2014 VA Form 21-4138 Statement in Support of Claim (again alleging a disrespectful attitude by Dr. L.S., who told him that an x-ray request was a waste of her time). The Board observes that Dr. L.S. is not shown by the medical record to have been present at the examination on August 13, 2012, the date Veteran declined the chest x-ray. Instead, the medical record shows that Dr. L.S., as primary care provider, signed acknowledgement of the August 13 examination on August 20, 2012. See August 2012 Medical Treatment Record – Government Facility. Indeed, the Veteran conceded at his hearing that during his first visit to the clinic for chest pain Dr. L.S. was not present. The Veteran believed, but was not certain, that the treatment was on August 5, 2012, and not August 13 as shown in the medical record. Nonetheless, the Veteran has asserted numerous times that he spoke to Dr. L.S. on or about August 13, which was not his first treatment by VA, and that she personally discouraged him from getting x-rays of his chest. See Hearing Transcript. The medical record indicates that that the Veteran was personally treated by Dr. L.S. on August 21, 2012. On that day, the Veteran complained of a severe cough for the past month which caused severe pain and inability to sleep. Records from that visit repeat that the Veteran had “refused” a chest x-ray the previous week. Of note, no pleuritic chest pain was observed at this examination (even though the Board observes Veteran ultimately underwent surgery for a pleuritic condition). Because one of his coworkers was suspected to have recently had tuberculosis, Dr. L.S. ordered multiple tests to rule out such a possibility. Followup was scheduled for two days later to go over the test results. Dr. L.S. also initiated a request for x-rays to be taken at a private facility closer to the Veteran’s residence. See August 2012 Medical Treatment Record – Government Facility. The following day, August 22, 2012, the Veteran went to the private facility, complaining of bilateral arm numbness, neck numbness, nausea, and a dry hacking cough. An EKG was performed, and x-rays were taken of the Veteran’s bilateral arms and chest. The Veteran was discharged with a preliminary diagnosis of pneumonia. The Veteran was given a “z-pak” azithromycin antibiotic regimen. Id. It should be noted that the Veteran testified to the Board that six days after he first began taking the z-pak, he went to see Dr. L.S. but she told him “to get out of her clinic, that I – I was wasting her time, and I had to wait until the full ten days because the antibiotic apparently is a 10-day medication.” See Hearing Transcript. The medical record does not confirm such a statement by Dr. L.S, or similar perfunctory clinic visit. Rather, the medical record states that on August 30, 2012, the Veteran was treated by Dr. L.S. who made record of interstitial pneumonia based on x-rays the previous week. Dr. L.S. prescribed another z-pak, cough syrup with codeine and guaifenesin, and ordered repeat chest x-rays at the private facility for the same day. See August 2012 Medical Treatment Record – Government Facility. On August 31, 2012, Dr. L.S. telephoned the Veteran and notified him that his chest x-ray results did not show any worsening of his condition, and the respiratory bacteria identified in his sputum should be covered by the z-pak antibiotics he was taking. She advised him to call back for a followup chest x-ray in three weeks. Id. On September 10, 2012, the Veteran walked into the VA facility complaining of a persistent daily fever, shortness of breath, congestion and coughing. An ambulatory care nursing note states that Dr. L.S. arranged to have labs performed the same day, including another sputum culture. The following day, Dr. L.S. prescribed ciprofloxacin, another antibiotic. See September 2012 VA Medical Treatment Record. X-rays taken on September 20 at the private hospital showed worsening of the Veteran’s condition. CT scans were performed and showed a nodule on the left lung. See September 2012 private records within Medical Treatment Record – Government Facility. On September 22, after consulting with his multiple treatment providers, the Veteran traveled to a larger VA facility several hours away from his home. Pulmonary consult notes from September 24 indicate a cavitary mass that had been “inadequately treated with community acquired pneumonia directed therapy.” See September 2012 VA Medical Treatment Record. He underwent numerous tests and procedures culminating with thoracotomy, partial parietal pleurectomy, and decortication surgical procedures on his left lung on September 28, 2012. Preoperative and postoperative diagnoses were left lung empyema with entrapment of left lung. See September 2012 Medical Treatment Record – Government Facility. It should be noted that as late as October 4, 2012, a VA infectious disease staff physician annotated being “a bit puzzled” in identifying the specific organism which had attacked the Veteran’s lung and caused subsequent problems. The physician spoke with the head of microbiology and sent additional samples for outside testing. She observed that there were likely anaerobes that had acted synergistically. She recommended high dose penicillin, and outlined other possible treatments if it was not effective. See October 2012 Medical Treatment Record – Government Facility. Thus, the Board observes that even after the Veteran’s surgery was complete, the source of his initial infection was still unidentified. In April 2013, a pulmonary attending note by two of the Veteran’s private doctors, Dr. M.D. and Dr. M.S., described the Veteran’s symptoms and his course of treatment. The doctors wrote that the Veteran “suffered a severe lung infection and abscess that was not recognized in a timely fashion and resulted in a serious empyema requiring a major thoracic surgery. As a result of this he has several limitations related to pain and lung function as a result of this illness.” See April 2013 Medical Treatment Record – Government Facility. The Board observes that the pulmonary attending note does not assert that any medical provider was negligent, that any procedure was inappropriate, nor identify any errors or omissions made during the Veteran’s diagnosis or treatment. The Veteran has submitted several lay statements in support of his contentions. A lay statement from B.P. in April 2014 indicates that the Veteran’s health deteriorated substantially since his sickness in 2012. A letter from C.T. indicated that the Veteran’s breathing became labored after his surgery and he was unable to do the work he used to because of the pain, drugs and labored breathing following his surgery. Similarly, a letter from J.D. argued that the Veteran became more easily short of breath than he previously was. See April 2014 Buddy / Lay Statement. The Veteran’s spouse also submitted a letter arguing that the Veteran did not “refuse” x-ray treatment as stated in the medical record. She argued the Veteran sought treatment early, continued seeking treatment, followed the doctors’ instructions, and “regarded VA protocol.” The Veteran’s spouse argued that Dr. L.S. disparaged the Veteran and did not take his complaints seriously. She argued that the Veteran had lung surgery because of the doctor’s “attitude and resulting negligence.” See April 2014 Buddy / Lay Statement. A letter from a caregiver and “advocate for the elderly,” K.S., argued that in other past cases she had witnessed patients experience adverse medical effects because of Dr. L.S. She stated she had met numerous people who had complained about Dr. L.S.’s care. See April 2014 Third Party Correspondence. Similarly, a statement from J.C., who identified herself as a county Veteran Services worker, argued that the VA clinic in question regularly turned patients away and sent them to other locations. See April 2014 Third Party Correspondence. The Board is mindful that neither of these two letters directly address the Veteran’s medical condition or his course of treatment with VA, and thus they are no probative with regard to the claims on appeal. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage is denied. The Veteran has argued that he experiences pain in his left arm, which he believes is a nerve condition resulting from his emergency surgery. It should be noted that in February 2012, several months before the Veteran first reported chest pain and coughing, medical records show that the Veteran reported hearing a loud pop in his arm while lifting a heavy weight. Records show the Veteran was referred to an orthopedic surgeon with a provisional diagnosis of a left bicep tendon tear, also described as a biceps rupture at the elbow. See February 2012 Medical Treatment Record – Government Facility. A January 2014 anesthesiology note in the Veteran’s record described the Veteran’s recent medical history, and the Veteran’s complaints of pain and disability. Regarding his arm, the examiner recorded the Veteran’s complaints of numbness and tingling along his left ulna. The examiner did not attempt triceps reflex tests because of the arm pain. The Veteran reported that he experienced shooting pain down his left arm with the Spurling maneuver, in which a patient’s head is turned to the side to assess radicular nerve pain. The examiner wrote that the Veteran’s post thoracotomy pain had advanced and gone beyond the surgical incision site. The examiner commented that there was possibly a radicular component (pinching of nerves within the spinal column) versus a peripheral neuropathy (damage of nerves outside of the spinal column). See January 2014 VA Medical Treatment Record. The Veteran underwent a VA examination for his claim in February 2014. The examiner indicated review of the claim file, and conducted an in-person examination. The examiner wrote an opinion that it was less likely than not that any disabilities experienced by the Veteran were a result of careless, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel; or because the disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider; or because 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. Regarding the Veteran’s left arm condition, the examiner wrote that no nerve damage to the left arm was medically documented, and there was no basis in medical fact to support a claim of nerve damage to the left arm secondary to surgery of the left lung. See February 2014 VA Medical Treatment Record. The Board remanded the Veteran’s claims in January 2020 for additional medical opinions to address whether the Veteran’s surgery may have caused or aggravated his pre-existing bicep condition. In February 2020, the Veteran underwent a VA examination for his peripheral nerve conditions. The examiner found severe, incomplete paralysis of the Veteran’s long thoracic nerve, a nerve in the chest. The examiner did not find any other affected nerves. However, the examiner diagnosed peripheral neuropathy of the left triceps. The examiner did not comment on the etiology of the conditions. See February 2020 Compensation and Pension (C&P) Examination. Also in February 2020, the Veteran underwent an additional VA examination for his left arm nerve damage. The examiner reviewed the Veteran’s claim file and conducted an in-person examination. The examiner wrote an opinion that it was less likely than not that the Veteran’s left bicep tear injury, which was noted in the February 2012 VA treatment records, was a result of the emergency surgery. See February 2020 C&P Examination. In August 2020, the same examiner who performed the February 2020 arm examination above, wrote an addendum opinion. The examiner that clarified that the surgery conducted on the Veteran affected only the thoracic area, and it was “anatomically not possible” to affect the left biceps tear. See August 2020 C&P Examination. The Board finds the preponderance of evidence is against granting the Veteran’s claim for entitlement to compensation under 38 U.S.C. § 1151. Specifically, the Board finds the medical evidence does not show that the Veteran’s arm condition was caused or aggravated by his lung surgery. No medical opinion of record has indicated that the Veteran’s left arm pain, tingling and numbness is associated with such surgery in any way. The Veteran may be sincere in his belief that his left arm has experienced difficulty, or additional difficulty, because of his lung surgery. The Veteran is competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the evidence does not show that Veteran has the medical training or experience to answer such a complex medical question. Thus, the Board finds the VA examiners’ opinions more probative, that the Veteran’s left arm condition is not caused by his lung surgery, nor was his left arm injury in early 2012 aggravated by that surgery. The evidence does not show that the Veteran’s left arm condition was the result of carelessness, negligence, lack of proper skill, error in judgement, or any similar instances of fault on the part of VA. Furthermore, there is no probative evidence indicating an unforeseen event coincident with that treatment. As such, entitlement to compensation under 38 U.S.C. § 1151 must be denied. 2. Entitlement to compensation under 38 U.S.C. § 1151 for left side nerve damage is denied. The Veteran argues that he has experienced increased pain and difficulty breathing, which he claims as left side nerve damage, as a result of his emergency lung surgery. Specifically, the Veteran argues that he would not have had to have surgery but for VA’s untimely diagnosis and inadequate treatment. The Board finds that the Veteran has experienced additional disability under 38 C.F.R. § 3.361 (b), based on comparison of his condition immediately before his course of treatment and after treatment. To this end, the Board finds probative the Veteran’s personal statements and the lay statements submitted by his spouse and associates, which clearly describe considerable functional loss. These statements are corroborated by the medical record, which shows a deterioration in the Veteran’s condition after his illness and surgery in 2012. The Board will therefore turn to address whether carelessness, negligence, lack of proper skill, or error in judgement on VA’s part caused that additional disability. The VA examiner in January 2014 provided an opinion that it was less likely than not that any disabilities experienced by the Veteran were a result of careless, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel; or because the disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider; or because 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. The examiner’s rationale pointed to the fact that the Veteran’s lung infection symptoms preceded his first VA evaluation. The examiner observed that at the Veteran’s first evaluation by VA on August 13, 2012, the medical records showed an appropriate physical examination and complete blood count were performed which did not document any lung infection. The VA medical provider’s instructions to follow up as necessary for any increased symptoms was appropriate. However, the Veteran delayed further diagnosis or treatment by not undergoing a chest radiograph at that time. Moreover, most of the pulmonary functioning testing of record noted abnormalities that are commonly seen in obese patients. The Veteran had a documented body-mass index (BMI) of 33 which had increased to 36 by 2014. The examiner concluded that post-thoracotomy chest pain, which the Veteran claimed as nerve damage of the left side, is well described after thoracic surgery. It is not an outcome that falls below the standard of care. The examiner wrote that the operative reports showed chronicity of the intrathoracic findings, which in turn suggested that the Veteran’s problems had not occurred acutely while under care of VA, and would likely have occurred even if the Veteran had transferred to the larger VA facility earlier. The surgery would likely have been required regardless. See February 2014 VA Medical Treatment Records. The Veteran has argued that he was not obese at the time of his surgery, and he has pointed to this contention as evidence that Dr. L.S. or other VA medical examiners were disrespectful or negligent when they called him obese in the medical record. The Veteran submitted a picture of himself in support of this contention. See April 2014 VA Form 21-4138 Statement in Support of Claim. However, obesity is defined as a BMI over 30. The record shows that throughout the period in contention, the Veteran fit the medical definition of obese. Thus, the Board does not find such contention to be probative. The VA examiner in February 2020 wrote an opinion that it was less likely than not that any additional disability experienced by the Veteran after surgery was the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA. The examiner wrote that the surgery itself was carefully planned and discussed with the Veteran. All outcomes and risks were discussed and consented to. Proper and adequate diagnostic procedures were provided prior to the diagnosis, with consistent follow-up and treatment protocol. Additionally, no immediate complications were noted after the procedure. The Veteran’s increased difficulty of breathing was due to the adhesions and scarring in the intrathoracic cavity, which was the result of the infection and not the surgical procedure. See February 2020 C&P Examination. The Board is mindful that the Veteran’s lung condition progressed rapidly and was life-threatening. As discussed previously, the infecting organism was never positively identified prior to the surgery. As the Veteran’s condition progressed, the record shows he received consistent treatment, prescriptions, testing and referrals for testing when such were unavailable at the VA clinic. These actions have subsequently been described by the VA examiners as appropriate measures based upon the medical examinations. Although the Veteran’s infection was difficult to identify, as shown by the lack of pleuritic pain early in his treatment, and the subsequent inability for even specialists to identify the microorganism, it does not necessarily follow that the Veteran’s surgery was the result of VA’s carelessness, negligence, lack of proper skill, error in judgement, or other instance of fault. At his hearing, the Veteran argued that Dr. L.S. did not properly perform sputum cultures, or else she would have diagnosed the Veteran’s underlying infection more quickly. The Veteran also argued that another person he knew with similar symptoms was given a different antibiotic and did not have to undergo surgery. See September 2019 Hearing Transcript. Although the Veteran is competent to attest to the facts he personally observed, such as experiencing pain and difficulty breathing, the record does not show he has the requisite medical training, skill or knowledge to offer opinions on complex medical questions such as this one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 362 (2007) (noting that a lay claimant is not competent to provide evidence as to complex medical questions). Instead, the competent medical evidence of record establishes that the additional disability experienced by the Veteran was due neither to the surgery itself, nor to VA’s failure to timely diagnose or properly treat his illness. No medical opinion of record shows that VA was negligent in its actions. The Veteran has argued that the pulmonary treatment note written by Dr. M.D. and Dr. M.S. in April 2013 proves that VA was negligent, because it states the infection was not “timely” identified. Yet, this treatment note does not comment on whether any prior treatment the Veteran received was appropriate or inappropriate, or assign any fault or blame. It merely observes that the Veteran’s infection was not identified in time to avoid surgery. Similarly, the VA treatment note in late September describing previously “inadequate” treatment does not establish that such treatment was negligent, but merely that it had not been effective. The Board does not find that these treatment notes establish any carelessness, negligence, lack of proper skill, error in judgement, or other instance of fault by VA. Finally, the Veteran has repeatedly argued that any delays in his diagnosis due to delayed x-ray examinations were his doctor’s fault because she discouraged him from such procedures, calling it a waste of time. As laid out in the summary of events above, the medical evidence does not support the Veteran’s contentions. Specifically, the Veteran’s recounting of the timeline of treatment, as well as which doctors saw him on which visit, do not correspond with the medical record. On August 13, 2012, when the Veteran argues Dr. L.S. discouraged him from undergoing an x-ray exam, Dr. L.S. is not shown by the record to have treated the Veteran at all. Later, when the Veteran argues that Dr. L.S. told him to get out of her clinic and come back after the z-pak had taken full effect, the record shows that Dr. L.S. instead ordered new tests and x-rays, or prescribed new medications on each visit. The Veteran acknowledged during his hearing that he was unsure of the dates of these events. Yet, the Veteran’s argument centers on the lack of timeliness by VA to diagnose his condition. The Veteran’s accounts of his early treatment before surgery are therefore not reliable. The Board finds the medical record more probative. Each record of treatment shows that Dr. L.S. took appropriate actions. The Board concludes that the preponderance of evidence is against a finding that the Veteran’s left side disability was the result of carelessness, negligence, lack of proper skill, error in judgement, or any similar instances of fault on the part of VA. The preponderance of evidence is against a finding that the Veteran’s left side condition, including pain, numbness, difficulty breathing and shortness of breath (claimed as nerve damage) was the result of carelessness, negligence, lack of proper skill, error in judgement, or any similar instances of fault on the part of VA. Furthermore, there is no probative evidence indicating an unforeseen event coincident with that treatment. As such, entitlement to compensation under 38 U.S.C. § 1151 must be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.