Citation Nr: 22015416 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-35 351 DATE: March 17, 2022 ORDER Compensation pursuant to 38 U.S.C. § 1151 for a left wrist disability is denied. FINDING OF FACT The current left wrist disability was not caused by VA treatment. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for a left wrist disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1961 to July 1963 in the United States Navy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office. In August 2020, January 2021, and November 2021, the Board remanded the appeal for further development. Compensation pursuant to 38 U.S.C. § 1151 for a left wrist disability is denied. A veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether a veteran had 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 the care or treatment is rendered. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 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 or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To establish proximate causation, the evidence must show that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); OR (ii) 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; OR (iii) the proximate cause of the additional low back disability was an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). 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(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran seeks benefits under 38 U.S.C. § 1151 for a disability of his left wrist following treatment by VA in June 2015. He reports that he sought treatment at the Audie L. Murphy VA Hospital emergency room in San Antonio, Texas after being involved in a motorcycle accident. He underwent a wrist reduction, but contends that this treatment was insufficient and that surgery should have been performed. He reports current pain, deformity, and functional impairment, including interference with driving, difficulty with motor movements, and difficulty performing manual labor tasks, as a result of VA's treatment and lack of surgical intervention. Initially, records show that many years prior to the 2015 motorcycle accident, the Veteran sustained a brachial plexus injury of the left arm, and has had ongoing atrophy and residual extensor weakness of the left wrist and fingers. See February 2010 VA treatment record. An electromyography (EMG) study conducted in June 2013 revealed left ulnar sensory nerve mononeuropathy. On June 3, 2015, the Veteran reported to the Audie Murphy VA Medical Center emergency room with pain in the left wrist. He reported that he was riding his motorcycle, and fell off while turning at a slow rate of speed, landing on his left hand and wrist. Police and emergency services arrived at the scene, treated the Veteran, and released him. On examination, the emergency room physician documented a deformed left wrist due to the motorcycle accident with pain and swelling. His baseline history included pain and an inability to fully extend all fingers for the past 40 years due to an old left wrist injury. The physician diagnosed a left wrist distal radius fracture, with dorsal displacement. He had radial motor deficits from the prior injury. The Veteran was administered pain medication, a closed wrist reduction was performed, and alignment was verified with x-ray. A cast was applied, and the Veteran was discharged and instructed to return for follow-up care. On June 15, 2015, he presented for a follow-up appointment. He reported having minimal pain, and emphasized to providers that he already had decreased functioning of the hand due to a previous injury from years prior. X-rays showed that the alignment of the left wrist was acceptable and there was no intraarticular extension. He was directed to return to the clinic in one month. The Veteran reported again one month later, on July 13, 2015, and his cast was removed. He reported having continued pain in the left forearm, worse with wrist extension. He had swelling and bruising and a limited range of motion. He was given a splint to wear for the next six weeks. On July 28, 2015, he returned, and it was again noted he had nerve-related problems from an injury 40 years ago. On examination, he had limited motion and reduced grip strength. He was provided with instructions for home exercises and was directed to return for reassessment in three to four weeks. In August 2015, he returned to the clinic and reported increased pain in the left wrist. He stated that he was very upset about the way the wrist looked and the persistent pain. He felt he should be progressing better, and had difficulty with movements of the hand. The examiner's assessment included neuropathy limiting motion and strength, existing prior to the motorcycle accident. He was directed to continue following his home exercise program and return for reassessment. In September 2015, the Veteran reiterated his prior contentions regarding his pain and deformity, and expressed his displeasure with the "quack" doctor who had treated him in the emergency room. The examiner noted a range of full motion in the fingers when the hand was warm, with improvement in grip and pinch strengths. He was given a compression glove for nightly use and advised to continue following his home program. He was discharged from occupational therapy. Throughout the course of the appeal, numerous VA medical opinions were obtained to address the Veteran's contentions under 38 U.S.C. § 1151. On VA examination in January 2017, the examiner found no objective evidence that the care provided by VA in the emergency room caused or aggravated the left wrist fracture. X-rays taken after the wrist reduction showed anatomical alignment. Recent primary care and emergency records did not document complaints of pain or abnormalities of the left wrist. The examiner additionally opined that there was no objective evidence of a disability resulting from either VA fault, an event not reasonably foreseeable, or a failure to diagnose or treat. In October 2020, the Veteran underwent a VA examination and x-rays were taken. On review of the claims file and clinical examination, the examiner opined that the Veteran's current symptomatology was due to the natural progression of his disability, given the nature and severity of his pre-existing left wrist condition, the impact of the motorcycle accident, and the natural aging process. The examiner found it less likely than not that the Veteran's condition was caused or worsened by VA treatment, and determined that the wrist reduction performed by VA returned the Veteran to his baseline status. Treatment records from 2016, 2017, and 2018 showed an improved and acceptable position of the radius fracture. The examiner additionally noted that the Veteran's injury from the motorcycle accident was mild and extraarticular; as such, either an open or closed reduction was appropriate and neither approach would compromise functioning. The examiner could not identify any problem in the Veteran's post-reduction care, and found no objective evidence of a disability resulting from VA fault, an event not reasonably foreseeable, or a failure to diagnose or treat. On VA examination in February 2021, the examiner found that the Veteran's functional ability was equivalent to his pre-fracture status based on a review of treatment records, x-ray reports, and VA examination reports. He found no additional disability as contended. The examiner further found no objective evidence of a disability resulting from VA fault, an event not reasonably foreseeable, or a failure to diagnose or treat. In June 2021, a VA examination was conducted but the examiner did not render an opinion addressing the Veteran's contentions under 38 U.S.C. § 1151. On VA examination in December 2021, the examiner reviewed the Veteran's claims file and opined that there is no additional disability resulting from VA treatment received in connection with his June 2015 motorcycle accident. The Veteran presented with a baseline history of left wrist problems, including an inability to fully extent all of his fingers and Parsonage Turner Syndrome of the left arm. He received appropriate treatment, care, and follow-up. Considering the pertinent evidence in light of the governing legal authority and resolving any doubt in favor of the Veteran, the Board finds that the threshold requirement of an additional disability has been established. Initially, the record clearly shows that at the time he presented to the VA emergency room in June 2015, before receiving any VA treatment, the Veteran had left wrist pain with functional loss of the left wrist and fingers. However, to the extent his pain and functional impairment have increased when comparing his state prior to and since VA treatment in 2015, the Board resolves any doubt in his favor and finds that this constitutes an additional disability. § 3.361(b). The United States Court of Appeals for Veterans Claims (Court) has held that the definition of "disability" includes any "condition" that results in "functional impairment of earning capacity." Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), (holding that pain alone, when causing functional impairment, may constitute a "disability" for VA compensation purposes, even if the pain is not accompanied by a medical diagnosis); Wait v. Wilkie, 33 Vet. App. 8 (2020). The Board thus finds that an additional disability has been established pursuant to the definition of the term set forth in this line of current caselaw. To the extent the Veteran asserts that he has a deformity of the left wrist due to VA treatment, the Board does not find that this constitutes an additional disability and as such, will not proceed to a discussion of actual or proximate causation in this regard. The June 2015 emergency room department records are clear that the Veteran presented with a deformed left wrist, diagnosed as a dorsal displacement deformity, prior to receiving any treatment. As explained by the January 2017 VA examiner, and as documented in post-reduction VA treatment records, x-rays taken after the June 3, 2015 treatment indicated good anatomical alignment of the left wrist. The October 2020 VA examiner found that post-reduction, the wrist was returned to baseline, and that treatment records from 2016, 2017, and 2018 showed an improved and acceptable position of the radius fracture. Given these comparisons, the Board does not find that any current deformity of the left wrist constitutes an additional disability for purposes of legal analysis under 38 U.S.C. § 1151. Turning to the actual causation element for the Veteran's additional disability, the Board finds the evidence is persuasively against the claim. As noted, 38 C.F.R. § 3.361(c)(1) states that merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. VA care must result in the additional disability. 38 C.F.R. § 3.361(c)(2) provides that 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. This generally requires a determination that a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment which probably would have avoided the resulting disability or death. See VAOPGCPREC 5-2001 (Feb. 5, 2001). Here, the facts raise both avenues of actual causation; first, whether VA care caused the additional disability, and second, whether VA's failure to properly treat the left wrist caused the additional disability. As for the contention that VA care itself caused the additional disability, the evidence does not support this assertion. Significantly, the record indicates other etiologies for the current symptomatology. On review of the claims file and clinical examination, the October 2020 examiner opined that the Veteran's current symptomatology is due to the natural progression of his disability, given the nature and severity of his pre-existing left wrist condition, the impact of the motorcycle accident, and the natural aging process. In other words, while the Veteran underwent VA treatment in 2015 and now has an additional disability consisting of pain and functional loss, that pain and functional loss was not caused by VA treatment. Rather, it is due to the underlying motorcycle injury itself, the prior injuries to the left wrist, and his age of 80 years. There is no persuasive evidence to the contrary of the October 2020 VA examiner's opinion. Further, there is no indication of a complication or problem following the June 2015 left wrist reduction in follow-up treatment records or on VA examination. As for the contention that VA failed to properly treat the left wrist, including by not performing surgery, VAOPGCPREC 5-2001 contemplates both the reasonableness of care as well as whether alternative treatment would have avoided the resulting disability. The evidence is persuasively against the claim on both counts. On the reasonableness factor, VA examiners in January 2017, October 2020, February 2021, and December 2021 unanimously found that VA followed an appropriate standard of care and found no objective evidence of a disability resulting from VA fault. On the matter of whether more aggressive treatment, including surgery, would have avoided the resulting disability, the October 2020 VA examiner explained that given that the injury was extraarticular and the fact that it was mild on x-ray, either an open or closed reduction was appropriate and neither approach would compromise functioning. There is no persuasive evidence to the contrary as to any of these findings. In reaching these decisions, the Board has considered the lay evidence. However, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex matter as this. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). As the evidence is not in approximate balance as to whether hospital care, medical or surgical treatment, or examination provided by VA caused the current left wrist disability, the analysis need not advance to the question of proximate cause. Mangham v. Shinseki, 23 Vet. App. 284 (2009); see also 38 U.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d). In sum, the evidence is persuasively against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to compensation under 38 U.S.C. § 1151 is denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.