Citation Nr: 1114797 Decision Date: 04/15/11 Archive Date: 04/21/11 DOCKET NO. 00-04 285A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2002) for loss of use of the lower extremities with loss of bowel and bladder control. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant, his spouse, son, and daughter ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from March 1957 to March 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of use of the lower extremities with loss of bowel and bladder control. This case has been before the Board on several occasions, most recently in May 2005, and was remanded for additional development and/or to ensure due process. The case is again before the Board for appellate consideration. The Veteran testified at a hearing at the RO before a Veterans Law Judge in August 2001. By letter dated June 2007, the Board informed the Veteran that the Veterans Law Judge who conducted the hearing is no longer employed by the Board. He was informed the law required that the Veterans Law Judge who conducted the hearing participate in the decision on the appeal. Thus, the Veteran was provided with an opportunity to have another hearing. The following month, the Veteran stated he did not want another hearing. FINDINGS OF FACT 1. A suboccipital craniectomy was performed at a VA hospital in September 1998. 2. There is no competent and probative medical evidence establishing that the surgery and ensuing treatment resulted in additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of use of the lower extremities with loss of bowel and bladder control have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson. In a December 2003 letter, the RO provided notice to the appellant regarding what information and evidence is needed to substantiate a claim for compensation benefits under 38 U.S.C.A. § 1151, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. A June 2006 letter advised the Veteran of how the VA assigns a disability rating and an effective date. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include VA medical records, an opinion from a private physician, an opinion from an independent medical expert, an extract from a medical textbook and the Veteran's testimony at a hearing before a Veterans Law Judge. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In pertinent part, 38 U.S.C.A. § 1151 provides: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-- (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. In this case, the appellant filed his section 1151 claim in February 1999. Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997, were amended. See 69 Fed. Reg. 46,426 (Aug. 3, 2004). Those regulations implemented the provisions of 38 U.S.C.A. § 1151 in effect since October 1997. In determining whether a veteran has 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 such care or treatment. See 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (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. 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 (2008). 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. See 38 C.F.R. § 3.361(d)(1). 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 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under Chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. In essence, the Veteran asserts that following his surgery in September 1998, the postoperative treatment he received resulted in an acceleration or worsening of his condition. He argues that when a shunt was removed, it caused a hemorrhage in the surgical area, and that it was not foreseeable that removing the shunt would result in loss of use of the lower extremities and bowel and bladder problems. The Veteran was admitted to a VA hospital in July 1998 for worsening ability to walk over the preceding two weeks, and increasing pins and needles of his legs and arms. At baseline, he used a cane and walker at home, and he could ambulate with his cane to his car and nearby stores. Magnetic resonance imaging of the brain revealed a pineal level mass. In addition, there were findings suggesting multiple sclerosis. The diagnosis on discharge was multiple sclerosis with acute exacerbation. The Veteran was again hospitalized by the VA from September to October 1998. It was noted that since the tumor was causing hydrocephalus, it was decided to decompress the tumor. The risks of the procedure and potential benefits were explained to the Veteran and he consented to proceed with surgery. A right frontal external ventricular drainage, suboccipital craniectomy and supracerebellar approach with radical decompression of a pineal region tumor was performed. A pathology report of the tumor revealed findings most consistent with, but not typical for, a choroidal plexus papilloma, without any malignant cells. Postoperative, the Veteran had a subacute onset of incontinence of stool and urine, and flaccid paraparesis with loss of reflexes in the lower extremities and markedly increased weakness in both lower extremities. A neurology consultation was obtained. The differential diagnoses included multiple sclerosis exacerbation and Guillain-Barre syndrome. Further magnetic resonance imaging studies were focused on the lumbar spine and revealed anterior displacement of the cauda equina structures within the fecal sac in the lumbar area. These findings were felt to be consistent with arachnoiditis. The pertinent diagnoses on discharge were postoperative arachnoiditis in cauda equina area and new multiple sclerosis lesions in conus medullaris, with flaccid paraparesis and incontinence of stool and urine; multiple sclerosis; and status post pineal mass excision. Records had noted a previous increase or flare of symptoms in July 1998. There was some question if there had been a spinal infarction. Subsequent studies revealed additional spinal lesions consistent with multiple sclerosis. Some improvement was noted after some physical therapy. In a September 2000 report, C. N. Bash, M.D., noted he had, at the Veteran's request, reviewed the Veteran's medical records to provide an opinion concerning his spine problems. Dr. Bash, who indicated he is a neuro-radiologist, stated he reviewed post service medical records, VA hospitalization records, radiographic reports, physician clinical reports, magnetic resonance imaging and CT images, and a medical literature search. He summarized findings from the records and reports. He indicated that on September 11, 1998, postoperative day one, there was a ventricular shunt seen entering the right frontal horn. The tip of the horn was too low. A head CT two days later showed there appeared to be evidence of hemorrhage present in the surgical bed and in the brain parenchyma surrounding the ventriculostomy catheter as it was traversing the frontal region. This has apparently been removed and a new tube inserted. There was also subarachnoid hemorrhage. Another head CT on September 17, 1998, revealed purulent drainage and a rising white count. It was indicated the findings were worrisome for an abscess. Adhesion of the cauda equina roots was noted on October 11, 1998. Two days later, it was reported the Veteran had a clear flaccid paralysis with absent reflexes. Magnetic resonance imaging on October 14, 1998 disclosed tethering of the cauda equina into the anterior part of the thecal sac in the L3 area. The findings were consistent with arachnoiditis. This might possibly be due to some subarachnoid bleeding during surgery. Dr. Bash concluded that it was clear from the imaging studies that the Veteran developed arachnoiditis at the one month postoperative period, and that this arachnoiditis/cauda equina tethering was the etiology of his lower extremity signs and symptoms. He further opined that the L3 arachnoiditis/cauda equina tethering was caused by the Veteran's postoperative meningitis or hemorrhage. He indicated the Veteran had both meningitis and hemorrhage prior to the development of his new, image proven, arachnoiditis/cauda equina tethering. Dr. Bash added that the arachnoiditis/cauda equina tethering was not the necessary (intended) result of the pineal region surgery. In other words, the Veteran's postoperative course caused the arachnoiditis/cauda equina tethering and the pineal surgery was not performed in order to cause the lumbar arachnoiditis/cauda equina tethering. A VA neurology examination was conducted in May 2004. The examiner noted that, following the Veteran's surgery in September 1998, the shunt became clogged and was removed. It was indicated the Veteran was told he bled into the spinal cord and developed left-sided weakness. The diagnosis were multiple sclerosis with paraplegia, necessitating the use of a wheelchair, and low back pain and cauda equina syndrome, causing both bowel and bladder symptoms. The examiner who conducted the May 2004 VA examination was requested to provide an opinion regarding the etiology of any paraparesis of the lower extremities. He opined in June 2004 that the symptoms the Veteran developed after surgery were more likely than not a result of the surgery rather than an exacerbation of his multiple sclerosis. The physician added that since he was not a neurosurgeon, he could not furnish an opinion as to whether the outcome was caused by carelessness, negligence or lack of proper skill, or error in judgment. The Veteran's chart was subsequently sent to the Chief, Neurosurgery Section of a VA Department of Surgery. The physician summarized the pertinent evidence in an August 2006 report. He reviewed the medical records of the Veteran's July 1998 admission, as well as subsequent treatment. He listed findings on the July 1998 hospitalization, including that the Veteran had spastic paraparesis, ataxic, with up-going toes and weaker left side. The admission note stated in the final impression that the Veteran has spastic paraparesis with left hemiparesis, in particular. An addendum noted the Veteran "can't stand but not to walk without assistance. Spastic paraparesis-weaker on left." The assessment referred to acute exacerbation of multiple sclerosis-acutely disabled. An outpatient neurosurgery note on August 31, 1998 showed the Veteran reported that since the stoppage of steroids, he had definitely deteriorated in the strength of his lower extremities and was not able to walk as well. The physician at that visit expressed his concern regarding whether the lower extremity signs were the result of multiple sclerosis or might be due to metastases secondary to the pineal region tumor. The Chief noted that the Veteran was admitted to a VA hospital in September 1998 for a pineal tumor with moderate hydrocephalus. In the postoperative period, the Veteran had a sub-acute onset of incontinence of stool and urine, and flaccid paraparesis with loss of reflexes in the lower extremities. Magnetic resonance imaging of the whole spine showed no evidence of cord compression. A lumbar spine magnetic resonance imaging was initially read as arachnoiditis, without nerve root enhancement that is characteristic of arachnoiditis. The same magnetic resonance imaging also showed two lesions in the conus suggestive of multiple sclerosis. Subsequent treatment resulted in improvement of strength in the lower extremities with the return of the patellar reflexes. The Chief of Neurosurgery further summarized the findings during the September 1998 hospitalization. A postoperative note on September 13, 1998 indicated the Veteran was "moving all ext. except a left L.E." The next day he was able to raise his right leg. The left leg was severely weak. He was also able to move the toes from both legs. He was reported to be continent for bowel movements most of the time on September 15, 1998. A neurology consultation three days later stated in the impression "MS exacerbated by metabolic and plans of neurosurgical procedure...Guillain-Barre still a possibility." An October 19, 1998 note stated the Veteran was improving on steroids. The discharge summary related that two days after initiation of intravenous steroids, the Veteran's lower extremity strength improved. The Chief of Neurosurgery addressed the points made by Dr. Bash. Initially, he observed that Dr. Bash was not a neurosurgeon or neurologist, but as a neuroradiologist he was entirely unqualified to give an opinion in this matter relating to surgical procedure or postoperative course or the causative relationship between radiological findings and clinical course. He added that Dr. Bash's expertise was only in the area of interpretation of imaging studies, and not the clinical correlation of those interpretations. The Chief of Neurosurgery observed that the statement by Dr. Bash that the Veteran had both meningitis and postoperative hemorrhage in the postoperative period is incorrect. At no time was there a clear evidence of culture positive meningitis. CSF, cell counts and chemical assays of glucose and protein are notably misleading, since such results can simply occur after any cranial or intrathecal spinal surgery or as a result of an autoimmune reaction such as multiple sclerosis or Guillain-Barre syndrome. Also, some trace amount of hemorrhage in the ventricles after any procedure is very normal for postoperative imaging, and does not signify pathological condition. He added that almost all craniotomies have some subdural and intraventricular blood that hardly is of any significance. It was also stated that the appearance of clumping of nerve roots alone is not diagnostic of arachnoiditis. In the absence of enhancement along the nerve roots on magnetic resonance imaging, which was absent in the Veteran's studies, the Chief stated such findings should not be interpreted with any specificity. He added the presence of clumping of nerve roots does not always translate to neurological deficits, and that in most cases, arachnoiditis is diagnosed generally by exclusion of other diagnoses. However, a diagnosis of arachnoiditis with this rationale hardly implies a causative relationship between imaging studies and clinical picture or neurological deficits. The Chief observed that postoperative magnetic resonance imaging was read by a neuroradiologist as showing lesions consistent with multiple sclerosis. The Chief also addressed the opinion of the VA physician in 2004, who opined that the deterioration noted in the postoperative period was not characteristic of multiple sclerosis as "the exacerbation of multiple sclerosis does not take place in this speed or fashion." The Chief observed that a review of the July 1998 hospital admission and subsequent notes indicated a fluctuating, but progressive pattern of neurological disease, which was characteristic of multiple sclerosis. Thus, the Chief concluded the Veteran had a progressive neurological disorder which would likely have progressed, regardless of his brain surgery. He did not find any evidence that the brain surgery contributed in any way to the progression. He did not find any evidence of negligence or carelessness on the part of the VA. Given the history of the Veteran's neurological diagnosis, such fluctuations or progressions are not at all unforeseen. Such disease progression or event was entirely reasonably foreseeable. Accordingly, the Chief opined it was less likely than not (probability of less than 50%) that the Veteran's currently reported chronic disability involving the lower extremities was causally related to the surgical procedure in 1998. He added a causal relationship between the surgery and the reported paraparesis is highly unlikely. He also stated it was less likely than not (probability of less than 50%) that the Veteran's currently reported chronic disability involving the lower extremities was the result of carelessness, negligence, lack of skill or error in judgment on the part of VA providers who performed the surgical procedure in 1998. Finally, he commented he did not believe that the neurological deficits were the result of an event that was not reasonably foreseeable. The progressive deterioration from multiple sclerosis was entirely foreseeable. There is no definite evidence of postoperative arachnoiditis, and even if one were to presume arachnoiditis was possible, such possibilities were foreseen preoperatively by the surgeon and preoperative spine magnetic resonance imaging studies were undertaken, thereby indicating that, however, rare, nerve root involvement by the tumor was entirely foreseeable and was considered by VA providers. In August 2007, the Veteran's representative submitted an extract from Cecil, Textbook of Medicine which indicated that several studies found that infections of almost any type increase the risk of exacerbation of multiple sclerosis. The Board sought an additional medical opinion, and forwarded the Veteran's claims folder to an independent medical expert. In a September 2010 report, the physician asserted that the Veteran's additional disability was more likely than not due to progression of his multiple sclerosis and was unrelated to shunt placement or removal. She commented the Veteran had primary progressive multiple sclerosis which, by definition, tends to slowly worsen over time with exacerbations resulting in permanent neurological deficits. She observed the Veteran clearly began to have worsening spinal cord dysfunction in July 1998, leading to the hospital admission that month for increasing lower extremity weakness. She stated the surgery and shunting that occurred were necessary given the possible diagnosis of a glioma (malignant brain tumor) and the risk of death with progression of hydrocephalus. The independent medical expert also noted there were abnormalities on subsequent CT's, magnetic resonance imaging scans and lumbar punctures. She noted there were multiple reasons why such changes could be seen, including postoperative changes. Other etiologies, such as meningitis and arachnoiditis, are less likely than postoperative changes for the following reasons. 1. No cultures ever proved any CNS [cental nervous system] infection. 2. The patient was seen by an infectious disease specialist...during the hospitalization whose opinion was that the patient did not have a clinical picture consistent with meningitis and he recommended no antibiotic treatment. 3. Arachnoiditis can be suggested by radiological imagine, but is a clinical diagnosis and a diagnosis of exclusion (i.e. all other potential etiologies of neurological dysfunction must be rule out). The MRI scans showed clumping of nerve roots, which can occur with any inflammatory process in the subarachnoid space, including bleeding that is expected to occur to some degree after a brain surgery. The patient did not complain of back pain during this admission, which would be expected in a patient with arachnoiditis, and his neurological deficits can all be explained by the simultaneously noted MS lesions in his spinal cord. Therefore, arachnoiditis cannot be clinically diagnosed. The independent medical expert added that an argument can be made that the surgery precipitated the exacerbation of the Veteran's multiple sclerosis, as any surgery, infection, general medical illness or even emotional stress are known to potentially precipitate multiple sclerosis exacerbations. However, the surgery was a medical necessity, and the development or extent of an exacerbation could not be reasonable foreseen. There is nothing the surgeon could have done to mitigate the possibility of an exacerbation of multiple sclerosis, and it was appropriately treated once identified. The evidence supporting the Veteran's claim includes the opinions expressed by Dr. Bash and an opinion from a VA physician in June 2004. However, the Board finds the opinions rendered by the VA physician in August 2006 and the independent medical expert in September 2010 are more probative. Initially, the Board points out that the Chief of Neurosurgery believed that Dr. Bash was not qualified, that is, not competent, to provide an opinion in this matter. The Chief set out very specific concerns and bases for his conclusions. Thus, the conclusions of Dr. Bash may be largely disregarded. In any event, the Chief pointed out specific areas in which his statements were incorrect and provided medical reasoning therefore. With respect to the June 2004 opinion of the VA physician, the Chief also noted that the Veteran's symptoms relating to paraparesis had their onset prior to the surgery, and, in fact, had resulted in a hospital admission in July 2008. As noted above, the independent medical expert unequivocally concluded that the Veteran's additional disability was more likely than not due to progression of his multiple sclerosis. Again, specific rationales were provided, as well as reasons why the explanation of Dr. Bash was implausible. The fact remains that there the competent and probative medical evidence fails to establish that the Veteran had increased disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or an event not reasonably foreseeable. The Board concludes that the medical findings are of greater probative value than the Veteran's allegations of additional disability. It is noted that an exacerbation of the multiple sclerosis was a known foreseeability of the treatment, but that the degree of the exacerbation could not be determined. This does not qualify as an event not reasonably foreseeable under the regulation. It was foreseeable that there could be an increase due to the surgery, but the surgery was deemed necessary by the presenting symptoms. Accordingly, entitlement to benefits is denied. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for loss of use of the lower extremities with loss of bowel and bladder control is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs