Citation Nr: 22016592 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-40 921 DATE: March 22, 2022 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for neuropathy of the left upper extremity is denied. Compensation under the provisions of 38 U.S.C. § 1151 for neuropathy of the bilateral lower extremities is denied. FINDINGS OF FACT 1. The Veteran's left upper extremity neuropathy was not proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. 2. The Veteran's neuropathy of the bilateral lower extremities was not proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for neuropathy of the left upper extremity have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.361. 2. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran service on active duty from August 1981 to July 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to compensation under 38 U.S.C. § 1151 for diabetes mellitus; and, neuropathy of the left upper extremity and bilateral lower extremities. The Veteran's notice of disagreement (NOD) was received in September 2015. On the NOD, the Veteran specifically appealed the denials of compensation under 38 U.S.C. § 1151 for neuropathy of the left upper extremity and neuropathy of the right and left lower extremities. The RO issued the statement of the case (SOC) in June 2017 addressing these claims; and the Veteran's VA Form 9, substantive appeal was received in August 2017. In October 2021, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. Compensation under 38 U.S.C. § 1151 Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. For section 1151 claims, a claimant is required to show that he or she incurred additional disability; and, that such additional disability was due to fault or negligence on the part of VA in providing medical treatment. Specifically, the claimant must show additional disability which was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. In the alternative, the claimant must show that he suffers from additional disability which was caused by VA hospital care, medical or surgical treatment or examination; and, that the proximate cause of the additional disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B). In determining that additional disability exists, the veteran's physical condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training, and rehabilitation services upon which the claim is based is compared to the veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). A claim based on additional disability due to medical treatment must meet the causation requirements. 38 C.F.R. § 3.361(c). To establish causation, the evidence must show that VA's medical treatment resulted in additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability does not establish cause. The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, his or her representative's informed consent. 38 C.F.R. § 3.361(d)(1); see also VAOPGCPREC 5-01. 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. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Furthermore, consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in §17.32(b) of this chapter, as in emergency situations. 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 disclosed in connection with the informed consent procedures of §17.32 of this chapter. The U.S. Court of Appeals for Veterans Claims (Court) has clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a Veteran with the same characteristics as the Veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for neuropathy of the left upper extremity 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for neuropathy of the bilateral lower extremities The Veteran seeks compensation under 38 U.S.C. § 1151 for neuropathy of the left upper extremity and neuropathy of the bilateral lower extremities, which he contends were caused by VA care that he received between October 2014 and January 2015. More specifically, the Veteran was admitted, following his own requests, to a VA Substance Abuse Training Program (hereinafter SATP or "Rehab") on October 20, 2014. He chose to attend Rehab to "get his life back under control," by ending his debilitating drug and alcohol abuse. See, e.g., July 2014 VA SATP admission screening note. He followed the program until January 20, 2015, when he was discharged per his own request. In early December 2014, the Veteran had a seizure; he was transferred for emergency care, and was diagnosed with hyperglycemia, "new onset DM (diabetes mellitus)," and cerebral infarction. See Board Hearing transcript, p. 2-3; see also VA emergency care and consult notes dated December 8-9, 2014 (showing transfer between Tuskegee VA Medical Center and Jackson (private) hospital in Montgomery, AL). The Veteran asserts that his peripheral neuropathies are due to medications prescribed to him during Rehab. See Statement in Support of Claim dated December 2014. Alternatively, he contends that the food he was served during his stay in Rehab, at Tuskegee, caused him to develop diabetes mellitus, type II (DM II); and, that the diabetes mellitus is the cause of the peripheral neuropathies. See October 2021 Board hearing transcript, p. 3. Initially, and as suggested above, the Veteran was first diagnosed with diabetes mellitus on December 9, 2014. See VA emergency care and consult notes dated December 8-9, 2014 (provisional diagnosis of new onset diabetes mellitus). The Veteran was not diagnosed with neuropathy of the left upper extremity or the bilateral lower extremities at any time prior to, or during, his stint in Rehab. A January 2015 VA discharge note shows diagnoses including diabetes mellitus, Type II, hypertension, and mixed hyperlipidemia. In June 2015, a VA examiner was asked to opine as to whether the Veteran had peripheral neuropathy that was due to the medications prescribed to the Veteran during Rehab which demonstrate carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner noted that there was "no evidence that the Veteran has a neuropathy of the left hand, left upper extremity, or both feet." The examiner similarly found that the peripheral neuropathy of the left upper extremity and bilateral lower extremities was not caused by or worsened by the medications prescribed to him during Rehab. The rationale cited the fact that, at the time of the examination, there was no evidence of peripheral neuropathy. The examiner similarly found that the peripheral neuropathy of the left upper extremity and bilateral lower extremities was not the result of an event that could have reasonably been foreseen by a reasonable healthcare provider, because, at the time of the examination, there was no evidence of peripheral neuropathy. The above medical opinion is afforded no probative value, because it is contradicted by objective findings showing peripheral neuropathy of the extremities in the treatment records. For example, a November 2015 VA primary care note shows that the Veteran was treated for diabetic neuropathy. A January 2016 private foot and ankle evaluation note shows that the Veteran was assessed with diabetes mellitus with peripheral neuropathy of the bilateral feet. An April 2016 private EMG report indicates motor sensory polyneuropathy of the left arm, with evidence of moderate grade II carpal tunnel syndrome superimposed on the polyneuropathy. November 2016 and December 2016 VA pain assessment notes show that the Veteran was diagnosed with diabetic neuropathy; pain was noted of the "left arm, bilateral feet and legs as a result of neuropathy." The onset was 2014. A January 2017 VA podiatry note shows the Veteran was assessed with diabetes mellitus, type II with neuropathy. At his October 2021 Board hearing, the Veteran testified that he was served food which caused him to be diagnosed with diabetes. He believes that he has current diagnoses of neuropathy of the left upper extremity and the bilateral lower extremities which are caused by his diabetes. He further asserts that the food he was served caused his blood pressure and blood sugar levels to increase. He reports that he was not diagnosed with diabetes until after he went to the rehabilitation center. Accordingly, the probative evidence of record shows that the Veteran has an additional disability of diabetic peripheral neuropathy. Therefore, the dispositive issue in the case is whether the Veteran's additional disability of peripheral neuropathy of the left upper extremity, and, right and left lower extremities was caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA; or, was the result of an event that was not reasonably foreseeable as a result of VA medical treatment. VA treatment records show that the Veteran followed a course of treatment aimed to treat diabetic neuropathy; for instance, he was treated in November 2016 for pain in the left arm and bilateral lower extremities, which pain had an onset "in 2014" and was caused by neuropathy attributable to his DM. See November 2016 VA pain management note. Such records are consistent with the timeline of his first diagnosis of DM IIthat is, he was first diagnosed with DM II in December 2014. Regarding the Veteran's lay assertions noted above, the Veteran, as a lay person, is not competent to provide a medical opinion on causation because it is not shown that he possesses the requisite medical education and training necessary to opine on the likely etiology of his diabetes or his diabetic neuropathy. The Veteran is certainly competent to report observable symptoms he experiences and their onset (such as numbness and tingling in the extremities, for example). Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, in this case, the question of the etiology of the Veteran's neuropathy falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disease involves a complex internal process and requires the ability to interpret diagnostic medical testing, as opposed to an external process or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Furthermore, while the Veteran's lay belief, that his neuropathy was caused by his diabetes, is supported by competent evidence in this case, the issue of entitlement to compensation for diabetes pursuant to 38 U.S.C. § 1151 has already been addressed and the Veteran did not appeal that denial. More specifically, the June 2015 rating decision denied compensation under 38 U.S.C. § 1151 for diabetes and peripheral neuropathy of the left upper extremity, and right and left lower extremities. The Veteran's NOD specifically appeals the denial of peripheral neuropathy and does not include the denial of diabetes. Accordingly, the June 2015 rating decision became final as to the issue of entitlement to compensation for diabetes pursuant to 38 U.S.C. § 1151; and, that decision is not subject to revision absent a finding of clear and unmistakable evidence. Such has not been alleged to date. Accordingly, as the competent evidence of record establishes that the Veteran's peripheral neuropathy of the left upper and bilateral lower extremities is specifically due to diabetes, and not the result of lack of proper care, negligence or similar instance of fault on the part of VA, or an event not reasonably foreseeable, the claim must be denied. In sum, the weight of the probative evidence shows that the Veteran's peripheral neuropathy of the (i) left upper extremity and (ii) bilateral lower extremities is a complication of his DM II; thus, the weight of the evidence is necessarily against finding that those disabilities were proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. As the weight of the evidence is against each claim, the claims for entitlement to compensation under § 1151 for peripheral neuropathy of the (i) left upper extremity and (ii) bilateral lower extremities are denied. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.