Citation Nr: 0315207 Decision Date: 07/09/03 Archive Date: 07/17/03 DOCKET NO. 00-00 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of an electromyograph (EMG) and nerve conduction velocity (NCV) studies performed at a VA medical facility in September 1996. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from March 1966 to March 1968 and from August 1974 to March 1975. This case comes before the Board of Veterans' Appeals (Board) from an April 1998 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction of the case was subsequently transferred to the VARO in Huntington, West Virginia, and that office forwarded the appeal to the Board. In April 1999, the veteran withdrew his appeal for service connection for a back disorder. In May 2003, he also withdrew his request for a travel Board hearing before a Veterans Law Judge (VLJ). 38 C.F.R. § 20.704(e) (2002). FINDINGS OF FACT 1. The veteran underwent an EMG and NCV studies in September 1996 at a VA medical facility. 2. There is no objective medical evidence of record, however, indicating that EMG and those NCV studies were done improperly or caused the symptoms or conditions now claimed. There also is no probative evidence of fault or negligence on the part of the VA caretakers in providing that treatment. CONCLUSION OF LAW The veteran does not have additional disability that is proximately due to or the result of the EMG and NCV studies performed at the VA medical facility in September 1996. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.358 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Subsequent to the April 1998 rating decision appealed, the VCAA, Pub. L. No. 106-475, 114 Stat 2096 (2000), was signed into law and codified, as amended, at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002). The implementing regulations are found at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.126 (2002). Since this liberalizing change in law occurred during the pendency of this appeal, the veteran is entitled to have this new law considered when deciding his case. See Karnas v. Derwinski, 1 Vet. App. 308, 31213 (1991). Here, though, the VCAA obligations have been satisfied. The RO apprised the veteran of the VCAA in a March 2001 letter; albeit, that was in conjunction with other claims not before the Board. Still, he was informed of the implementing VA regulations in the February 2003 supplemental statement of the case. He also was notified of his personal responsibilities, including obtaining and submitting evidence to support his claim, and what VA would do to assist him. See 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO obtained the veteran's voluminous VA treatment records which he cited as relevant to his claim and obtained a VA medical nexus opinion, as well, in September 1999. 38 U.S.C.A. § 5103A(d). That, incidentally, was in addition to his private clinical records-which also were obtained. The veteran also presented testimony in support of his claim during an April 1999 hearing at the RO before a local hearing officer. And although also given an opportunity to testify at another hearing before a Veterans Law Judge of the Board, he cancelled it. Therefore, VA has made reasonable efforts to obtain all of the evidence that is relevant to his current appeal, and he is not prejudiced by the Board deciding his case. See Bernard v. Brown, 4 Vet. App. 384 (1993). Governing Statute and Regulations According to 38 U.S.C.A. § 1151 (West 2002), when a veteran suffers injury or aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of his own willful misconduct or failure to follow instructions, and the injury or aggravation results in additional disability, then compensation shall be awarded in the same manner as if the additional disability was service connected, i.e., in the same manner as if the additional disability was due to an injury or disease that he had incurred during his active military service. Also bear in mind, though, that the veteran filed his claim for section 1151 compensation in November 1997. Therefore, he must show fault or negligence on the part of VA in providing the medical treatment in question to prevail in this appeal. See 38 U.S.C.A. § 1151 (West 2002) (a showing of fault or negligence is necessary for recovery of claims filed on or after October 1, 1997). Only if he had filed his claim prior to that date would this not be necessary. See Brown v. Gardner, 115 S. Ct. 552 (1994), aff'g 5 F.3d 1456 (Fed. Cir. 1993), aff'g Gardner v. Derwinski, 1 Vet. App. 584, 586-88 (1991); see also VAOPGCPREC 40-97 (Dec. 31, 1997). The regulations implementing 38 U.S.C.A. § 1151 are 38 C.F.R. §§ 3.358, 3.800. They provide, in pertinent part, that, in determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based is compared with the physical condition subsequent thereto. 38 C.F.R. § 3.358(a). With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. 38 C.F.R. § 3.358(b)(1). Compensation is not payable if the additional disability is a result of the natural progress of the injury or disease for which the veteran was hospitalized. 38 C.F.R. § 3.358(b)(2). Moreover, the additional disability must actually result from VA hospitalization or medical or surgical treatment and not be merely coincidental therewith. 38 C.F.R. § 3.358(c)(1), (2). Additionally, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain or intended to result from the VA hospitalization or medical or surgical treatment. 38 C.F.R. § 3.358(c)(3). Factual Background The veteran testified before the RO in April 1999 that he underwent VA EMG and NCV studies in September 1996 which were improperly performed and which resulted in a back disorder, pain in his buttocks, pain in his head, Bell's palsy, bilateral carpal tunnel syndrome (CTS), and a seizure disorder. An October 1999 letter from a VA Medical Center Director reflects that a September 1999 report was prepared in this case by an Associate Professor, Division of Neurology, Department of Medicine, Duke University Medical Center, who was also a staff physician at the Durham VA Medical Center. In the September 1999 report by that physician it was reported that the medical records of the veteran were examined with regard to the current claim as to medical problems secondary to "EMG/NCV" [electromyograph and nerve conduction velocity] study done on September 26, 1999. It was noted that that veteran's previous medical problems, as noted in his medical records, included "diabetes (1981), ASCVD [arteriosclerotic cardiovascular disease] (1991), lower abdominal pain (1991), atypical chest pain (1991), and left sciatica (1994). More recent diagnoses added in May 1999 include diabetic neuropathy, HBP [high blood pressure], depression, and carpal tunnel syndrome." The September 1999 report further reflects that the September 1996 study noted a "pre-existent history of neck and shoulder pain, hot burning sensation in feet, and hand numbness at night. The study was abnormal, confirming bilateral carpal tunnel syndrome and demonstrating early signs and suggestion of demyelinating motor neuropathy. No adverse event during the study is noted in the records." It was also reported that the "veteran's belief and complaint that persistent diffuse pain in upper body (back, buttocks, and head), Bell's Palsy, bilateral carpal tunnel syndrome and light seizures are related and caused by insertion of EMG needle in the cervical region is not supported by my review." The report further states that the: probable cause of the above complaints are the pre-existing listed diagnoses on his Problem List [] and listed in the Intake History date 9/26/99. They are not conceivably related to the EMG/NCV procedure. The only remote possibility is that the positioning and time spent on the examination table contributed to acute neuropathic and/or musculoskeletal pain. This would be an unavoidable and rare occurrence in such a procedure secondary to positioning. However, no such problems or adverse events are noted in records [sic]. Normally, such symptoms would manifest during the procedure and result in rest for the patient, amendation of the attempted procedure or termination of the procedure if necessary. The likely cause of the veteran's symptoms is underlying medical conditions, particularly diabetes, present prior to the procedure. Progressive neuropathic pain and nerve entrapments are common in diabetes and could cause some or all of the above. An official VA examination in July 2001 notes that the veteran was first diagnosed with diabetes in 1969 and had been on medication since that time. He reported having neuropathies which were thought to be secondary to his diabetes. He was currently taking Dilantin for peripheral neuropathy and numbness. He reported having had Bell's palsy after a VA medical procedure in "1986." However, the condition had resolved after a few months and he had not had any recurrence or problems. He also reported taking Dilantin for back pain, but he did not relate any history of seizures. After an examination the diagnosis was that his back disorder, with pain in his buttocks, was due to lumbar spine spondylosis, without degenerative disc disease, and arthropathy at L5-S1. Also diagnosed were diabetes with peripheral neuropathy and a history of acute and subacute peripheral neuropathies and a history of bilateral carpal tunnel syndrome. However, there was no diagnosis of Bell's palsy because there was no such pathology currently nor was there a diagnosis of a seizure disorder, also because there were no pathological findings on examination. Legal Analysis Following the April 1998 rating decision which was appealed, in May 2001 service connection was granted for post-traumatic stress disorder (PTSD). Private clinical records indicate the veteran has received extensive treatment for his PTSD. And a February 2000 private clinical record shows that he believed the 1996 VA EMG/NCV was a traumatic event for him and that he decompensated when speaking of it. Additonally, a February 2002 rating decision granted service connection for diabetes mellitus, ischemic heart disease, and peripheral neuropathy of both upper and lower extremities, as well as cataracts. So the veteran is now service connected for most of the very neuropathic symptoms of which he has complained over the years and which predate the September 1996 VA EMG and NCV studies. The veteran is a lay person and his belief and opinion as to the cause and etiology of his symptoms, as well as to the manner in which the September 1996 VA EMG/NCV was conducted is not competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The only competent medical evidence on file with respect to the matter in question is the September 1999 medical opinion. And it not only does not support the veteran's claim-but, in fact, directly refutes it. The reviewing VA physician definitively concluded that the 1996 VA procedures did not in any way cause additional disability-attributing the majority of the veteran's symptoms, instead, to his now service-connected diabetes and peripheral neuropathy. Likewise, the official examination in July 2001 specifically found that he does not have Bell's palsy or a seizure disorder. So he either already has been granted service connection for some of the conditions alleged or does not have the others, much less additional disability from them as a result of the VA procedures in question. Section 1151 compensation is expressly excluded in either instance. In determining whether the claim should be granted, VA is responsible for considering both the positive and negative evidence. If the evidence, as a whole, is supportive or in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if, as here, the preponderance of the evidence is against his claim, then it must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for residuals of an EMG and NCV studies performed at a VA medical facility in September 1996, is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.