Citation Nr: 21011043 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 15-23 297A DATE: February 26, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for right wrist tendonitis and arthritis (right wrist disability) is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for left shoulder rotator cuff tear (left shoulder disability) is denied. FINDINGS OF FACT 1. The Veteran does not have right wrist disability or any other additional disability associated with the right wrist that was caused by medical care provided to the Veteran by VA; his right wrist disability is not the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 2. The Veteran does not have left shoulder disability or any other additional disability associated with the left shoulder that was caused by medical care provided to the Veteran by VA; his left shoulder disability is not the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for compensation pursuant to 38 U.S.C. § 1151 for right wrist disability have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.361. 2. The criteria for compensation pursuant to 38 U.S.C. § 1151 for left shoulder disability have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board remanded these two issues to obtain an adequate VA addendum opinion. The Board finds that the January 2020 VA opinion is adequate and the issues are properly before the Board for adjudication. 1151 Eligibility 1. Right wrist disability 2. Left shoulder disability The Veteran asserts entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right wrist disability and a left shoulder disability, which he claims is a result of VA examiners. Specifically, for the right wrist disability, the Veteran alleges that his right wrist condition was caused by negligent care at the New Albany outpatient clinic on April 25, 2013. He stated that he experienced swelling and nerve pain in his right wrist and at the injection site after a blood test. He further claimed that the VA doctor who examined him in May 2010 caused re-tearing of his rotator cuff during a physical examination. In relevant part, 38 U.S.C. § 1151 provides that compensation shall be awarded for a “qualifying additional disability” in the same manner as if such additional disability was service connected if the disability was (a)... not the result of the veteran’s willful misconduct and- (1)... was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary... and the proximate cause of the disability... was- (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. Thus, to obtain benefits under 38 U.S.C. § 1151 (a), a veteran must show: (1) a “qualifying additional disability,” (2) directly caused by the treatment furnished by VA, and (3) a proximate cause that is either the result of a fault on the part of VA or an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361 (d)(1). In determining whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after such care or treatment. See 38 C.F.R. § 3.361 (b). To establish that the proximate cause of a qualifying additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, a veteran must show either (1) that VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (2) that VA furnished the care, treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1). Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361 (c)(1). Additionally, the determination of whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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. 38 C.F.R. § 3.361 (d)(2). The regulation further provides that, 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361 (d)(2). There is a large amount of evidence in this case, consisting of both lay and medical evidence. The Board notes that it has reviewed the evidence in its entirety but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). The relevant evidence of record consists of the Veteran’s post-service VA medical treatment records, VA medical opinions, and statements by the Veteran. In May 2013 the Veteran submitted a claim alleging injury to his left shoulder and right wrist due to treatment through VA. The Veteran had a history of left shoulder disability where he had injured his left rotator cuff from falling off a ladder in 2008. He was approved for physical therapy for his shoulder problems. On May 25, 2010 the Veteran was seen for his left shoulder problems by Dr. F. Upon examination, the Dr. F reported that the Veteran had full passive range of motion of left shoulder with pain at full abduction. Dr. F furthered that at the end of the examination the Veteran complained that he had not taken the time to hear his concerns and that he expected one or two hours per visit to hear his story. Dr. F. had submitted a chiropractor request for the Veteran’s left shoulder, but it was denied the next day. The Veteran spoke with VAMC staff during six different phone calls since May 25, 2010. He then complained in September 2010 that he feels like he was injured during an examination by Dr. F and asked to switch primary care physicians. An April 2011 MRI showed that the Veteran had a partial thickness tear of the left shoulder rotator cuff. In a November 2012 treatment note, the examiner reported that the Veteran slipped and fell in December 2011 and injured his trapezius again. The Veteran was seen on April 25, 2013 for a tetanus (Tdap) vaccination. The examiner noted that the Veteran experienced no adverse reaction to the immunization. In a May 2013 treatment note the Veteran reported that he would like to have his right wrist x-rayed since it started hurting on April 25, 2013 following the tetanus vaccination and blood draw. In June 2013, the reported a stinging and tingling sensation to his right hand since the right arm venipuncture. He was diagnosed with neuropathy. In July 2013, the Veteran reported that the burning pain involving his right forearm, hand, and especially his thumb and fingers began after getting his blood drawn on April 25, 2013. He explained that he did not have any pain at the time of the blood draw, but over the next several hours he started to have a burning pain. In September 2014 a VA examiner issued an opinion regarding the Veteran’s left shoulder and right wrist claims. The examiner opined that the Veteran’s wrist tendonitis and arthritis was less likely than not (less than 75 percent probability) caused by hospital care, medical, or surgical treatment or examination furnished to the Veteran under law administered by VA, either by a VA employee or in a VA capacity or facility. The examiner explained that tetanus immunization does not cause wrist arthritis or tendonitis. The examiner furthered that the act of puncturing the skin and drawing blood from a vein through a needle, or puncturing the skin with a needle for injection of an intramuscular vaccine, at distant sites, does not cause wrist tendonitis or arthritis. The examiner explained that this would be considered generally accepted medical knowledge. The examiner furthered that the location of the injection of the vaccine in the deltoid muscle or the location site of the blood draw in the antecubital fossa would not cause tendonitis or arthritis in the right wrist. So far as arthritis is concerned, it is anatomically and physiologically impossible for a needle puncture in the upper, lateral arm to lead to degenerative arthritis of the wrist. The examiner continued that there is no medical nexus as the wrist and the injection or blood draw site are just not connected in a way that would allow a medically reasonable explanation for connection. The examiner continued to opine regarding the left rotator cuff tear. The examiner opined that the Veteran’s left shoulder disability was less likely than not (less than 75 percent probability) caused by hospital care, medical or surgical treatment or examination furnished to the Veteran under law administered by VA, either by VA employee or in a VA capacity or facility. The examiner reported that the Veteran’s left shoulder was examined by Dr. F on May 25, 2020 and noted that upon examination, the examiner noted full passive range of motion of the left shoulder with pain at full abduction. The examiner claimed that it would not be uncommon for an examiner to find pain when the patient actually shows up in the office complaining of pain. The examiner further reported that while the findings confirm hat there was a shoulder disability, there was no evidence of an injury during the visit. The examiner noted how after the visit, there was an addendum describing the Veteran’s negative reaction to not getting as much time with the doctor as he wanted and that he did not mention any injury. The examiner opined that if the Veteran had been knowingly injured by the doctor, it would have showed up in a note or in the addendum. The examiner further reported that after this visit, a period of three and a half months passed until September 2010 when the Veteran first mentioned that he felt he was injured during an examination. The examiner furthered that the Veteran spoke with the primary care physician office a total of six times by phone about various topics, but did not mention his shoulder problems that he clams to be an injury caused by the VA doctor. The examiner opined that from a medical standpoint, for there to be a connection between the Veteran’s torn rotator cuff and in injury by Dr. F, there would not be a three and a half month delay between cause and effect. The acute tearing of a shoulder tendon would be immediately noticed by the Veteran and the doctor, had it occurred during the examination. The examiner expressed that the reasonable expectation is that if the injury occurred during the examination, the Veteran would have mentioned it then or during one of the six phone calls after the visit. The Veteran was afforded a VA addendum opinion in January 2020. In this opinion, the VA examiner opined that It is less likely than not that the Veteran had an additional disability regarding his left shoulder because of the treatment provided at the VA. The examiner explained that the Veteran claims that his left shoulder was injured by Dr. F., but that he did not mention this alleged injury until three and a half months after the office visit. The examiner furthered that in the meantime, the Veteran had multiple interactions with his primary care physician’s office, but never indicated that he had an injury. The examiner furthered that upon a review of the records, no additional disability is indicated because of treatment by the VA. The examiner explained that the normal natural history of a rotator cuff tear, be it an original injury or a re-injury, would include onset of pain at the time of the injury. The examiner reported that Dr. F’s notes did not mention increased pain or other symptoms during his examination in his notes. Regarding the right wrist, the examiner opined that the Veteran did not have an additional disability because of the treatment provided by the VA. The examiner explained that a tetanus immunization does not cause or involve additional disability related to wrists. The examiner furthered that the Center for Disease Control and Prevention lists common to uncommon to rare side effects from taking this immunization and tendonitis and arthritis are not listed as having any relationship to immunization. The examiner furthered that the act of puncturing the skin and drawing blood from a vein through a needle, or puncturing the skin with a needle for injection of an intramuscular vaccine, at distant sites, does not cause or involve additional disability related to wrist tendonitis. The examiner explained that this would be considered generally accepted medical knowledge. The examiner furthered that there is not an anatomic or physiologic or pathologic connection between the use of the needle and the claimed wrist condition and that the natural history of the wrist condition does not include these types of injections. The examiner furthered that the location of the injection of the vaccine or of the blood draw in the deltoid muscle would not cause or involve additional disability related to tendonitis in the right wrist and that there is no medical nexus as the wrist and the injection site are just not connected in a way that would allow a medically reasonable explanation for connection. The examiner also opined that it was less likely than not that the Veteran’s right wrist tendonitis was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment. The examiner explained that the chart review does not show that immunization or blood draw involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment. The examiner further opined that the Veteran’s left shoulder disability was less likely than not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment since the note for the examination does not indicate that an injury occurred. The examiner explained that typically, this information is included if it occurs during an examination and the expectation is that when a rotator cuff injury occurs it hurts enough to be noticed by the doctor. The examiner noted that information gathered in the clinical setting for treatment is considered more probative than that which is gathered in the compensation setting. Based on a review of the record, the Board finds that entitlement to compensation pursuant to 38 U.S.C. § 1151 for left shoulder and right wrist disabilities is not warranted in this case because the Veteran’s disability was not caused by medical care or treatment provided to the Veteran by VA. In making this finding, the Board accords significant probative weight to the VA examination opinion provided in January 2020. Here, the January 2020 VA examiner noted that there is no indication of an injury or a complaint of an injury during the Veteran’s May 2010 visit nor is there any evidence of a connection between providing a tetanus immunization or drawing blood and wrist tendonitis and arthritis. The examiner explained that if the Veteran had experienced a re-tear of his rotator cuff, then it would have caused enough pain for the Veteran to react and let it be known that he was suffering. Additionally, the examiner noted that Dr. F. would have noticed if there was an injury and would have noted it in his notes. Moreover, regarding the Veteran’s right wrist disability, the examiner noted that there is no correlation to providing a shot or drawing blood and causing tendonitis or arthritis. The Board has considered the Veteran’s statements, including that he received substandard care. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, questions of medical causation and reasonable care fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau, supra (lay persons not competent to diagnose cancer). In this case, the cause of a right wrist disability and a re-tearing of a rotator cuff and the reasonable standard of care are matters suited to the realm of medical expertise. As such, to the extent the Veteran is addressing questions of medical causation and/or aggravation of the right wrist and left shoulder, the Board finds his statements are not competent lay evidence. Moreover, there is no evidence that the Veteran suffered from any injury in both instances regarding his right wrist or his left shoulder during each respective visit. Notwithstanding, the probative medical evidence outweighs the lay statements. Moreover, while the Veteran’s representative stated that the Veteran claims that he did not consent to the medical treatment he received that caused his injuries, there is no indication that the Veteran had not consented. There is indication that the Veteran was told that he was about to get an immunization and was told what the side effects would be. Moreover, regarding his left shoulder disability, the Veteran had sought treatment for his left shoulder disability which is why he was attending the primary care physician. The Veteran’s representative also claimed that VA did not obtain all documentation regarding the Veteran’s claims. The Veteran has not provided any information regarding any private providers to seek medical records from. The record is up to date with the latest VA treatment records. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to compensation pursuant to 38 U.S.C. § 1151 for the right wrist and left shoulder disabilities. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for entitlement, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.