Citation Nr: 0015106 Decision Date: 06/08/00 Archive Date: 06/15/00 DOCKET NO. 98-04 340 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Whether the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology due to a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is "well grounded". 2. Whether the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the right thigh due to a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is "well grounded". 3. Whether the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the left groin area due to a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is "well grounded". 4. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology due to a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992. 5. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the right thigh due to a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992. 6. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the left groin area due to a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active service from February 1943 to January 1946. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 1997 rating decision by the RO which denied entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for damage to the L4-L5 intervertebral disc, numbness in the right thigh, and a neurological disorder in the left groin area. In December 1997, the veteran appeared and gave testimony at a hearing before a hearing officer at the RO. A transcript of this hearing is of record. On a VA Form 9 filed in March 1998 the veteran requested a further hearing before a member of the Board in Washington, D.C. Accordingly, the veteran was scheduled for a hearing in Wahington, D.C.before the undersigned Board member on May 24, 2000, but the veteran cancelled his appearance prior to the hearing. The issues listed on the title page of this decision are before the Board for appellate consideration at this time. They have been recharacterized in order to comply with recent Court precedent. For reasons made evident below, the issues of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology, neurological deficit affecting the right thigh and for neurological deficit affecting the left groin area will be discussed in the remand section of this decision. FINDINGS OF FACT 1. The veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is plausible. 2. The veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the right thigh based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is plausible. 3. The veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the left groin area based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is plausible. CONCLUSIONS OF LAW 1. The veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) 2. The veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the right thigh based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) 3. The veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the left groin area based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Basis. VA outpatient treatment records reflect occasional treatment during the 1980s for complaints of low back pain. During VA outpatient treatment in October 1989, the veteran gave a history of constant back pain since a fall that occurred three months earlier. An X-ray of the lumbosacral spine showed marked degenerative disc disease at the L4-L5 level. Reactive osteoarthritis changes were noted about the posterior articulating elements. Heavy calcifications were also noted at that level. The veteran was hospitalized at a VA facility from late April to early May 1992 in order to undergo a cystoscopy and a transurethral resection of the prostate. On April 29, 1992 the veteran was brought to the operating room. A spinal anesthetic was administered at L3-L4 utilizing 15 milligrams of Marcaine and 10 milligrams of Fentanyl. The veteran was placed in the lithotomy position and cystoscopic evaluation was performed followed by a transurethral resection of the prostate. The operative report reveals no evidence of complications during this surgery. The veteran tolerated the procedure well. On May 3, 1992 the veteran complained of numbness over the right lateral thigh and left groin areas. On neurology consultation the following day it was stated that the history suggested either a peripheral nerve stretch injury or an exacerbation of degenerative joint disease. The impression was that right meralgia paresthetica with pelvic tilting due to surgery had to be considered. It was doubtful that there was nerve root nicking with the spinal since the process was bilateral. During an anesthesiology follow-up that day, it was noted that the anesthesia had been administered to L3-L4 uneventfully and that no bleeding or paresthesia had been elicited at the time. It was further said that it was doubtful that the sensory deficits were directly related to the spinal anesthesia administration. It was noted that insertion of a spinal needle at L3-L4 without paresthesia elicited, was not consistent with the L 1 distribution of the veteran's deficits. At the time of his discharge from the hospital on May 5, 1992, the veteran was said to be in stable condition. During VA outpatient treatment in late May 1992 it was reported that the veteran had mild neuritis along the L2-L3 distribution. It was said that some areas had resolved and some areas were still sore. In July 1992, the veteran complained of a "dead feeling" in the right lateral thigh and left anterior groin area. The veteran said that there had been some improvement, with the sensation returning. He also complained of a sharp burning pain. Evaluation revealed intact sensation to hot and cold, pin prick, and soft touch. A CT scan of the lumbar spine showed lateral bulging of the L3-L4 disc with encroachment of the neural foramina. There was marked pars hypertrophy at L4-L5, but there was no bulging, protruding, or herniated disc at this level. When seen by the VA as an outpatient in early August 1992, the veteran continued to complain of numbness in the right thigh and left groin areas. He also complained of intermittent low back pain with radiation into the left lower extremity. During treatment in September 1992 the veteran reported that his right thigh symptoms had gotten slightly better. Occasional subsequent VA treatment for complaints of neurological deficit in the right thigh and left groin is indicated, as is treatment for lumbosacral radiculopathy. After a VA orthopedic examination in early December 1996, the diagnoses were degenerative lumbosacral spondylosis and degenerative joint disease of the right hip. The examining physician also commented that the veteran appeared to have developed meralgia paresthetica on the right after his 1992 transurethral resection of the prostate. It was reported that the veteran continued to experience numbness on the right anterolateral thigh. A sensory examination was normal, including in the distributions supplied by the lateral femoral cutaneous nerve and the examiner did not believe that trauma due to the veteran's prostate surgery was a causal factor of these symptoms. It was also the physician's opinion that the veteran's disk related changes at L4-L5 were degenerative in nature and preexisted the 1992 surgery. He said there was no documentary evidence of aggravation of this condition in relation to the 1992 prostate surgery. On a December 1996 VA neurological examination the veteran claimed that, during his April 1992 VA surgery, a physician administering spinal anesthetic pulled and jerked him so strongly that he began to suffer from back pain the following day which radiated into his right leg. Examination revealed questionable decreased sensation to pinprick in the veteran's L4 distribution. There was also right lateral thigh numbness and left inguinal area numbness of unclear etiology. It was said that given the veteran's history of trauma during spinal anesthesia, the symptoms might be due to lumbar radiculopathy. It was said that a neurological examination was grossly normal, focally, without sensory or motor dysfunction. The numbness in the right thigh could represent meralgia paresthetica due to localized neuritis of the lateral cutaneous nerve of the right thigh. During a hearing at the RO in December 1997, the veteran said that his legs were strong prior to his VA prostate surgery in 1992, but became very weak thereafter. He said that he was jerked about during the application of spinal anesthesia prior to the April 1992 surgery and that he immediately began to feel pain in his back. He also began to experience numbness in the lower extremities in the days following the operation. In February 1998 the veteran's clinical records were reviewed by a VA anesthesiologist. After his review, the VA physician opined, essentially, that the veteran's assertion that the spinal anesthetic caused his right thigh and left groin numbness was without merit. The doctor believed that these symptoms were likely due to an exacerbation of degenerative joint disease or a stretch injury to the nerves resulting as a complication of the veteran being in the lithotomy position during surgery. Of record is statement from Craig N. Bash, M.D., a neuroradiologist, dated in May 2000. Doctor Bash stated that he had reviewed the veteran's clinical records . After his review it was the doctor's opinion that the pain and abnormal sensation in the veteran's back and legs were directly related to his spinal injuries following his April 1992 prostate surgery at a VA facility. It was also the doctor's opinion that the veteran developed an L3-4 disc level syndrome as a complication of the April 1992 prostate surgery. The doctor said that the veteran likely had preexisting degenerative changes at the L3-4 level which were aggravated by the surgical procedure. The veteran was thought to have had compression of the right L4 nerve root during the prostate surgery, which resulted in his current chronic right L4 radiculopathy. II. Legal Analysis The threshold question to be answered in this case is whether the appellant has presented well-grounded claims, i.e., claims that are plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). As will be explained below, the Board finds that the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for disc pathology at L4-L5 associated with VA surgery in April 1992 is well grounded. The Board also finds that the veteran's claims for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for neurological deficit in the right thigh and neurological deficit in the left groin area are likewise well grounded. For a well grounded claim to exist as to an issue involving 1151 benefits there must be medical evidence of a current disability and medical evidence showing that the current disability was either caused by or aggravated by VA examination, VA treatment, or VA hospitalization, including surgery. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet. App. 91 (1993) The Board notes that since the veteran's claims for compensation benefits pursuant to the provisions of 38 U.S.C.A.§ 1151 for disc pathology at L4-L5, a neurological deficit in the right thigh and a neurological deficit in the left groin were filed prior to October 1, 1997, negligence is not for consideration in regard to these claims. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of VA hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death was service connected. The regulation implementing that statute, 38 C.F.R.§ 3.358, provides, in pertinent part, that compensation is not payable for the necessary consequences of medical or surgical treatment or examination 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 to result from, or intended to result from the examination or medical or surgical treatment administered. 38 C.F.R.§ 3.358(c)(3). The Board also notes that 38 C.F.R.§ 3.358, provides, in pertinent part, that in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization etc., was authorized. In determining whether additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincident therewith. 38 C.F.R. § 3.358 (b), (c)(1). The record indicates that the veteran had lumbar intervertebral disc syndrome with osteoarthritis in the lumbar spine long before he underwent a VA performed transurethral resection of the prostate in April 1992. A 1989 X-ray of the lumbosacral spine showed marked disc degenerative disease at the L4-L5 level with associated osteoarthritis changes. At the time of his April 1992 VA surgery, a spinal anesthetic was administered at the level of L3-L4, not at the level of L4-L5. During a VA neurological examination in December 1996 the veteran gave a history of a traumatic injury to his lumbar spine during the administration of spinal anesthetic prior to his April 1992 VA surgery. (The history of trauma given by the veteran is completely unsupported by the clinical record.) The VA examining physician thereafter said that in view of the veteran's history of trauma during the administering of spinal anesthesia, the veteran's symptoms might be due to lumbar radiculopathy. In addition, the Board notes that following a December 1996 VA orthopedic examination it was the examining physician's opinion that the veteran's disk related changes at L4-L5 were degenerative in nature and preexisting. The doctor further said there was no documentary evidence of aggravation of this condition in relation to the 1992 prostate surgery. However, in a May 2000 statement, Craig N. Bash, M.D, expressed a medical opinion that the veteran's pain and abnormal sensation in his back and legs was due to a spinal injury sustained during his April 1992 VA performed prostate surgery. This statement from Doctor Bash is competent medical evidence that demonstrates a relationship between current lumbar spine pathology and the April 1992 VA performed transurethral resection of the prostate. Since that is the case, the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology is well grounded. Review of the record shows that the veteran initially complained of numbness in his right lateral thigh and left groin a few days after his April 1992 VA performed transurethral resection of the prostate. Evaluations conducted at that time indicated that his neurological deficits in the right thigh and left groin were possibly due to stretching injuries related to the surgery. After a VA anesthesiologist examined the veteran's records in February 1998, he opined that the veteran's neurological deficits in the right thigh and left groin area were unrelated to the application of spinal anesthetic prior to his April 1992 surgery but were likely due to stretching injuries resulting from his positioning during the surgical procedure itself. Since this evidence demonstrates a nexus between the veteran's April 1992 VA performed surgery and his subsequent neurological deficits in the right thigh and left groin, the Board finds that the veteran's claims for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a neurological deficit affecting the right thigh and a neurological deficit affecting the left groin are also well grounded. ORDER The veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is well grounded. To this extent, the veteran's appeal is allowed. The veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the right thigh based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is well grounded. To this extent, the veteran's appeal is allowed. The veteran's claim of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for neurological deficit affecting the left groin based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992 is well grounded. To this extent, the veteran's appeal is allowed REMAND Since the veteran's claims for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology, a neurological deficit affecting the right thigh, and a neurological deficit affecting the left groin have been found to be well grounded in the above decision, the VA has a duty to assist the veteran in the development of these claims under the provisions of 38 U.S.C.A. § 5107(a). The Board is of the opinion that further examination of the veteran in conjunction with a comprehensive review of the medical record is warranted to resolve the merits of this appeal. The issues of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology, neurological deficit affecting the right thigh, and neurological deficit in the left groin are REMANDED to the RO for the following development: 1. The veteran should be afforded a VA examination by a board consisting of a urologist and a neurosurgeon to determine whether the veteran currently has lumbar disc pathology, neurological deficit in the right thigh and neurological deficit in the left groin due to a VA performed transurethral resection of the prostate in April 1992. The claims folder must be made available to the examining physicians so that the pertinent clinical records can be reviewed in detail. The examiners should state that they have reviewed the claims folder in their examination report. All pertinent clinical findings must be reported in detail. After the physical examination(s) and following a careful review of the clinical record, the examining physicians should correlate their findings and render a medical opinion as a board of two in answer to the following questions: (a) Was the veteran's preexisting lumbar disc pathology aggravated by the administration of anesthesia, his positioning on the operating table, or any other aspect of the 1992 VA surgery involving a transurethral resection of the prostate; (b) does the veteran have neurological deficit in the right thigh at the current time, separate and distinct from lumbar radiculopathy, and, if so, what is the correct diagnosis of that disorder; (c) does the veteran have neurological deficit in the left groin at the current time, separate and distinct from lumbar radiculopathy, and, if so, what is the correct diagnosis of that disorder; (d) if the answers to questions (b) and/or (c) are in the affirmative, was neurological deficit in the right thigh and/or left groin caused by the administration of anesthesia, the veteran's positioning on the operating table, or any other aspect of the 1992 VA surgery involving a transurethral resection of the prostate. 2. Then, the RO should adjudicate on the merits the veteran's claims for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for lumbar disc pathology, neurological deficit in the right thigh and neurological deficit in the left groin area based on a transurethral resection of the prostate performed during a VA hospitalization in April and May 1992. If these claims remain denied the veteran and his representative should be provided a supplemental statement of the case in regard to these issues and afforded a reasonable opportunity to respond. The case should then be returned to this Board for further appellate consideration, if otherwise appropriate. No action is required of the veteran until he is so informed by the RO. The purpose of this remand is to obtain additional clarifying clinical evidence. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals