Citation Nr: 21039842 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-33 858 DATE: July 1, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for soft tissue disorder residuals of pain, stiffness, fibrotic area and limited motion of the left hip girdle, fibrotic areas and enlargement of the left thigh, is granted. FINDING OF FACT Soft tissue disorder residuals of pain, stiffness, fibrotic area and limited motion of the left hip girdle, fibrotic areas and enlargement of the left thigh are the unforeseen result of a VA morphine injection. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for soft tissue disorder residuals of pain, stiffness, fibrotic area and limited motion of the left hip girdle, fibrotic areas and enlargement of the left thigh, have been met. 38 U.S.C.§ 1151 (2012); 38 C.F.R. § 3.361 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from June 1978 to March 1988. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in February 2018. A transcript of the hearing is of record. This matter was previously before the Board in June 2018, at which time it was remanded for further development. The requested development has been completed and the matter is now ready for appellate review. Left Hip/Thigh Condition Secondary to Morphine Injection under 1151 Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct. When additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. The United States Court of Appeals for Veterans Claims (Court) has indicated that Section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment; and (3) competent evidence of a nexus between that asserted injury or disease and the current disability. To determine whether a veteran has additional disability, VA compares the veteran's condition immediately before the beginning of the medical care or examination to the veteran's condition after such care or examination. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. In Viegas v. Shinseki, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) noted that Section 1151 delineates three prerequisites for obtaining disability compensation. First, a claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" on the part of VA, or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); §§ 1151(a)(1)(A), 1151(a)(1)(B). Thus, Section 1151 contains two causation elements - a veteran's disability must not only be caused by the medical care he received from VA, but also must be proximately caused by the VA's fault or by an unforeseen event. Section 1151 does not extend to the "remote consequences" of VA medical treatment, and a veteran is not entitled to obtain section 1151 disability benefits simply because he was in a VA medical facility at the time he sustained an injury. Viegas, supra, citing Brown v. Gardner, 513 U.S. 115, 119, 115 S. Ct. 552, 130 L. Ed.2d 462 (1994). However, the Federal Circuit Court stated in Viegas that "Congress intended to encompass not simply the actual care provided by VA medical personnel, but also treatment-related incidents that occur in the physical premises controlled and maintained by the VA." Id. at 1378 (Fed. Cir. 2013). In determining whether a veteran's disability was actually caused by VA medical treatment, only a causal connection, and not direct causation, is required. Viegas, 705 F.3d at 1380; see also Brown v. Gardner, 513 U.S. 115, 119 (1994). However, a mere showing of additional disability after VA treatment will not establish cause. The evidence must show that the treatment resulted in the veteran's additional disability. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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 medical treatment or examination proximately caused a veteran's additional disability, it must be shown that the medical treatment or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As it relates to the above, the Board notes that there have been various opinions obtained with regard to the Veteran's 1151 claim. At the time of a November 2012 VA examination, the examiner rendered a diagnosis of hemangioma, left proximal thigh. Following examination, the examiner indicated that the findings of the Veteran's left thigh were due to hemangiomas in the fat between the skin and underlying muscles of the gluteus and vastus laterals of the left thigh, extending from the buttock to the distal third of the thigh. He noted that these masses were not caused by a single injection. These were congenitally inherited defects of formation of blood vessels known as hemangiomata, one of the most common forms of defects of formation of humans. He stated that he found no scarring in the area of the injection site, no skin breakdown, and no point tenderness; therefore, he could find no evidence of permanent residuals of the injection the Veteran was given in the area of the congenital hemangiomata. In a March 6, 2013 VA opinion only report, the examiner indicated that the claims folder had been reviewed. He noted that it was impossible to ascertain the extent of the Veteran's present findings except from the last statement of the physician whom the Veteran saw for the VA examination, who stated that he found no scarring in the area of the injection site, no skin breakdown, and no point tenderness; therefore, he could not find evidence of permanent residuals of the injection the Veteran was given in the area of the congenital hemangiomata. The March 2013 examiner noted that from the MRI report this was consistent with hemangiomas which were congenital and would have no relationship to a morphine injection. The March 2013 examiner stated that the opinion done by the November 2012 examiner who examined the Veteran was the most accurate. In contrast, in a March 11, 2013 VA examination report, which included a VA examination of the Veteran and review of the file, the Veteran was diagnosed as having residuals of a hematoma, left thigh. The examiner indicated that examination did not show any abnormality of the skin to suspect abnormality in the subcutaneous tissue or the left lower extremity. He noted the documentation of injection was not present in the file. He stated that since the nodular lesions described in the MRI were noted to be present in the subcutaneous fat tissue over the gluteus maximus it was likely that injection in this area caused bleeding which extended distally giving rise to pain and residual swelling. He noted that usually the bleeding would get absorbed over time leaving no residuals. The examiner stated that since the Veteran still had some residual swelling, as evidenced by difference of circumference of the two thighs, it was likely related to the injection-related bleeding, especially when there was no other explanation for the abnormality of circumference of the two thighs. The examiner noted that the left thigh/hip hemangiomas could not have been foreseen because of his previous normal examinations of the left lower extremity and no abnormality of the left lower extremity skin on the current evaluation. In its June 2018 remand, the Board noted that the most recent VA examiner did find residuals resulting from injection. However, the examiner did not indicate whether the proximate cause of the additional disability was either 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 an event not reasonably foreseeable. The Board remanded the matter for further development, to include an additional VA examination and opinion. The Veteran was afforded the requested examination in August 2019. At that time, a diagnosis of soft tissue residual disorder of left hip girdle and thigh was rendered. The examiner indicated that the residual disorder consisted of pain and stiffness with associated limited hip movement, and, fibrotic areas of the posterolateral left hip girdle and left thigh soft tissues. In an accompanying opinion, the examiner stated that after reviewing all available pertinent information, it was his medical opinion that the morphine injection in 2012 at least as likely as not caused the Veteran's current soft tissue disorder residuals of pain, stiffness, fibrotic area and limited motion of the left hip girdle, fibrotic areas and enlargement of the left thigh. The examiner indicated that the temporal sequence of events as depicted in the medical records available for review provided credible and compelling evidence for such nexus conclusion. The presence of extravasated blood in the soft tissues triggered bodily mechanisms that attempt resolution. Breakdown and absorption occur but, also, the process of inspissation, confinement and fibrosis may occur. These processes are variable and depend on multiple factors including one's body make-up. He stated that just as one person may for hypertrophic (keloid) skin scars or rheumatoid arthritis and another not, so too can be the innate predilection for variable fibrosis. In this case, the Veteran developed appreciable fibrosis in some of the affected soft tissues. The examiner reported that the records did not reflect any intentional or malfeasant act to account for the occurrence (and residuals) related to the 2012 medication injection. The examiner also indicated that after review of the available records and topical information it was his concluding medical opinion that the unfortunate occurrence and outcome of the morphine injection in this case was an ordinary risk of the injection procedure and it was also pointed out that it could not have been reasonably foreseen by a reasonable healthcare provider performing such procedure. (Continued on the next page) In the current case, the Veteran has incurred a "qualifying additional disability" that was not the result of his own "willful misconduct." The disability has been caused by medical/surgical treatment, furnished the Veteran by VA. Finally, the proximate cause of the Veteran's disability was not reasonably foreseeable. Section 1151 contains two causation elements - a veteran's disability must not only be caused by the medical care he received from VA, but also must be proximately caused by the VA's fault or by an unforeseen event. Such is the case here. Two examiners, in 2013 and 2019, have indicated that the Veteran's residual disability was unforeseen. It is acknowledged that there is some ambiguity in the 2013 and 2019 VA examiner's opinions; however, the Board will accord the Veteran the benefit of the doubt. Given the foregoing, compensation under 38 U.S.C§ 1151 for soft tissue disorder residuals of pain, stiffness, fibrotic area and limited motion of the left hip girdle, fibrotic areas and enlargement of the left thigh, secondary to morphine injection, is warranted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.