Citation Nr: 18132304
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-01 273
DATE:	September 6, 2018

ORDER

Entitlement to compensation for a right lung disorder, to include a pneumothorax, pursuant to 38 U.S.C. § 1151 is denied.
FINDING OF FACT

A right lung disorder, to include a pneumothorax, did not result from complications of VA treatment.
CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C. § 1151 for a right lung disorder, to include a pneumothorax, are not met.  38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.361.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from May 1987 to February 1996.

This case comes before the Board of Veteran’s Appeals (Board) on appeal of a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran appeals the denial of his claim of entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right lung disorder, to include a pneumothorax, arguing that VA treatment caused his right lung disorder.   In light of Clemons v. Shinseki, 23 Vet. App. 1 (2009) the Board has expanded the Veteran’s claim as reflected above.
Compensation under 38 U.S.C. § 1151 
Compensation under 38 U.S.C. § 1151 is granted for additional disability if the additional disability was not the result of willful misconduct, the actual cause of the additional disability was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable.  38 U.S.C. § 1151(a); 38 C.F.R. §§ 3.361(c), (d). 
The mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation.  Evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in additional disability.  38 C.F.R. § 3.361(c)(1). 
To determine whether the Veteran has an additional disability, VA compares his condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based, to the Veteran’s condition after such care, treatment, examination, services, or program has stopped.  VA considers each involved body part or system separately.  38 C.F.R. § 3.361(b).
To establish that carelessness, negligence, lack of proper skill, error in judgment, 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, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent.  38 C.F.R. § 3.361(d)(1).
Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment 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(c)(2).  
The Veteran claims entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right lung disorder resulting from trigger point injections to treat his service-connected right all radicular group brachial plexus injury with cervical radiculitis.  The record shows that in December 2007 while working as a VA security guard the appellant reinjured his right shoulder while wrestling a suspect to the ground.  As a result of this postservice injury the Veteran received trigger point injections on his right trapezius muscle on January 10, 2008.   The risks of the procedure were discussed with the Veteran, and he completed a consent form.  No post procedure complications were noted.  
On January 18, 2008, a small right apical pneumothorax was noted on x-ray.  Subsequent testing on January 23, 2008, revealed an interval resolution of the right apical pneumothorax.  Id.  
A May 2008 pre-operative chest x-ray showed a clear right lung.  There was no evidence of a right pneumothorax.  Thereafter, the record is silent for any complaints, findings or diagnoses pertaining to a lung disorder, shortness of breath, and/or dyspnea prior to November 2009.  
A CT scan in November 2009 revealed that, given the clinical history and elevated white blood count, the scattered areas of patchy airspace opacities likely represented a residual lower respiratory tract infection or superinfection of an upper respiratory infection.  Follow-up testing to rule out pneumothorax showed multiple scattered areas of patchy airspace opacities and linear densities as well as ground glass appearance opacities in both lungs, worse on the right, particularly in the right lung base.   A concurrent November 2009 chest CT showed persistent bilateral mosaic pattern of attenuation most commonly due to air trapping from the chest in the setting of chronic obstructive pulmonary disease.
The Veteran maintains a VA pulmonologist diagnosed lung problems due to scarring from the pneumothorax during his trigger point injections and that another physician concurred with this opinion.  The Veteran had a follow-up appointment in November 2011 in the pulmonary clinic due his abnormal chest CT.  It was noted that a recent open lung biopsy showed emphysematous changes but no fibrosis.   The Veteran reported smoking one pack of cigarettes per day “socially.”   The Veteran was diagnosed with atelectasis, bronchiectasis and chronic obstructive pulmonary disease.  The physician opined that the Veteran’s disorder was likely due to scarring from pneumothorax during shoulder injection, as “no other historical causes could be elicited after exhaustive interview.”  
Following a review of the record, a June 2012 VA examiner diagnosed the Veteran with chronic obstructive pulmonary disease.   The examiner reported that there was no evidence of any significant lung injury, no hemothorax or hemopneumothorax, and no evidence of any lung abnormalities for about one and a half years after the trigger point injection.   Noting there was no evidence of a scar on the upper right lung on the May 2009 x-ray.  The examiner opined that a significant injury to the lung would have shown up on in the short time after the procedure.  Id.
The June 2012 examiner also opined that the Veteran’s bilateral and multi-lobe involvement of the lungs could not have resulted from the right upper lobe injury.  The examiner further opined that a spontaneously resolving small pneumothorax “does not and cannot give rise to any lung disorders or abnormalities.  The June 2012 physician disagreed with the November 2011 opinion noting that it was not supported by the clinical evidence documented in the Veteran’s treatment records.  
On review of the June 2012 medical examination findings and a review of the record, an April 2013 VA examiner found that, based on imaging studies, pulmonary function studies, and an open lung biopsy, the Veteran’s history of smoking for many years was the most likely cause of his diagnosed chronic obstructive pulmonary disease.
The Board finds the June 2012 and April 2013 VA examiner opinions to be the most probative on this issue.  An expert opinion is adequate if it (1) is based on a correct factual premise, (2) is based on the pertinent medical history and examinations, (3) is not plagued by ambiguity or inconsistency; and (4) provides sufficient detail to fully inform the Board on its medical question.  Significantly, the mere recitation of a veteran’s self-reported lay history does not constitute competent medical evidence of diagnosis or causality.  See LeShore v. Brown, 8 Vet. App. 406 (1996).  In addition, medical opinions premised upon an unsubstantiated account of a veteran are of no probative value.  See Swann v. Brown, 5 Vet. App. 229, 233 (1993); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician’s opinion when it is based exclusively on the recitation of a veteran or other claimant).
The medical opinion relating the Veteran’s right lung disorder to his trigger point injections specifically notes that the opinion is based on a lack of other historical causes elicited from interviewing the Veteran.  No reference is made to the Veteran’s over twenty-year smoking history, the previously documented medical history, or clinical evidence.  A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).  Therefore, the November 2011 medical opinion has no probative value.  Additionally, opinions and diagnoses based on the November 2011 opinion lack probative value also.
The evidence shows that the Veteran did not manifest any respiratory symptoms prior to or during the trigger point injections.  Indeed, the evidence shows that the appellant’s symptoms were not manifested until after a week had past following the injections, and at that time his symptoms were diagnosed as an asymptomatic small right apical pneumothorax. Notably the pneumothorax had resolved by the end of the month.  Still, the next inquiry is whether these symptoms were caused by the injections, followed by whether there was fault on the part of VA.
Regarding the right lung pneumothorax, a June 2012 VA examiner stated, while it is possible for trigger point injections to cause a pneumothorax, the absence of scarring of the right upper lung on May 2009 x-rays is dispositive to such a determination. The June 2012 VA examiner further noted that a pneumothorax can occur spontaneously without any trauma, and that in this case no significant lung injury was shown in the short time after the procedure.  Indeed, the examiner noted that the first abnormal chest x-ray showing opacities and abnormalities was dated in November 2009, almost two years following the procedure.   Accordingly, as the Veteran was advised of the risks; and as there was no evidence of carelessness, negligence, lack of skill, error in judgment, or fault on the part of VA treatment providers when rendering the treatment, entitlement to compensation pursuant to 38 U.S.C. § 1151 are denied.
The Veteran has argued that Section 1151 benefits should be awarded because a pneumothorax was found eight days after his trigger point injections.  The objective medical record, however, shows that the procedure was completed without any complication or any complaint voiced by the Veteran.  The evidence further shows that the pneumothorax spontaneously resolved without residuals within a week of being discovered.  Additionally, while a pneumothorax can possibly be caused by trigger point injections, it also occurs and resolves spontaneously.  Importantly, there is no evidence that the Veteran’s pneumothorax was due to carelessness, negligence, lack of skill, error in judgment, or fault on the part of VA treatment providers.
The Board acknowledges the Veteran’s belief that his current right lung disorder is the result of his trigger point injections; but he is not shown to have the training or the expertise to competently express an opinion as to the cause of his right lung disorder, and no argument or medical evidence has been received that contradicts or outweighs the VA examiners opinions that the there was no negligence or fault on the part of VA that resulted in these symptoms.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
 
The claim is denied.
 
DEREK R. BROWN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Edwards, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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