Citation Nr: 1111101 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 09-33 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 for cervical spine pain, nerve damage, and degenerative arthritis, claimed to have resulted from surgical treatment of obstructive sleep apnea at the Department of Veterans Affairs Medical Center (VAMC) in Shreveport, Louisiana, in October 2006. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. FINDING OF FACT The most competent and probative evidence of record preponderates against a finding that the Veteran has an additional and/or aggravated disability that was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing surgical treatment for obstructive sleep apnea in October 2006. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for cervical spine pain, nerve damage, and degenerative arthritis, claimed to have resulted from surgical treatment of obstructive sleep apnea at the Shreveport VAMC in October 2006, have not been met. 38 U.S.C.A. § 1151 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.154, 3.358, 3.361 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking compensation under 38 U.S.C.A. § 1151 on the basis that he believes his cervical spine disability was aggravated by surgery conducted at the VAMC in Shreveport, Louisiana, in October 2006. Specifically, the Veteran has asserted that his neck was hyper-extended during the surgery, which aggravated his cervical spine disability and resulted in pain, nerve damage and degenerative arthritis. See November 2007 informal claim, January 2008 statement, August 2008 notice of disagreement, and September 2009 substantive appeal. Under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2009), as amended in 1996, if the veteran suffers an injury or an aggravation of an injury, which is not the result of the veteran's willful misconduct, and which results in additional disability or death as the result of VA hospital care, medical or surgical treatment, or examination provided under the laws administered by VA, compensation shall be awarded in the same manner as if such additional disability or death were service connected. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 C.F.R. § 3.361(a) (2010). To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonable foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). The Board notes for information and clarification that, for a period previous to October 1997, 38 U.S.C.A. § 1151 did not require any showing of negligence in order for a claim to be granted. See 38 U.S.C.A. § 1151 (1996); 38 C.F.R. § 3.358 (2006) (requiring only that additional disability be "the result of" VA hospital care, medical or surgical treatment, or examination). However, as noted above, the current version of 38 U.S.C.A. § 1151 requires that, for claims filed on or after October 1, 1997, the claimed additional disability must have been "caused by" VA hospital care, medical or surgical treatment, or examination, and further adds a "proximate cause" requirement that the additional disability be caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability be an event which was not reasonably foreseeable. In this case, the Veteran filed his claim seeking benefits under 38 U.S.C.A. § 1151 in November 2007. Therefore, under the statute and new regulation, the Veteran's claim must be adjudicated under the current version of section 1151. That is, even if there is an additional disability which is the result of VA care, the standard is to preclude compensation if the evidence does not establish negligence or other fault on the part of VA, or of an event not reasonably foreseeable. By way of background, the evidence reveals that the Veteran suffered a post-service work-related injury in 1991, which resulted in cervical spine problems and required cervical spine fusion in 1992. The evidence shows that the Veteran was involved in multiple motor vehicle accidents in 1998 and 2003 and, despite the previous surgical treatment, sought treatment for constant neck and right shoulder pain, which radiated into his right hand and caused weakness, numbness, and pain. See VA treatment records dated from 1997 to 2001. The evidence reflects that an electromyograph (EMG) conducted in 1992 revealed left C6 radiculopathy; however, that condition resolved, as a subsequent October 1997 EMG was normal. See May 2001 treatment record from Dr. A.C. Nevertheless, a March 2001 cervical spine X-ray revealed advanced degenerative disc disease with advanced arthritic changes at C5-6, while an August 2003 MRI also revealed minimal disc bulging between C6 and C7, which was not causing any significant stenosis. The evidence shows that the Veteran's cervical spine disability continued to progress, as a December 2004 X-ray revealed end-stage severe discogenic degenerative changes of spondylosis involving C5-6, with moderate discogenic degenerative changes of spondylosis in C6-7. Likewise, a July 2003 EMG revealed radicular pain in the right upper extremity and left hand numbness deemed consistent with possible C6 radiculopathy on the right and carpal tunnel syndrome of the left. See July 2003 EMG report from Dr. K.B. Based on the above, the Board finds extensive problems with the Veteran's neck prior to October 2006, providing what only can be described as extensive factual evidence against this claim, clearly indicating a severe problem well before October 2006 caused by multiple injuries not related to service. In fact, it is very unclear as to what has "worsened" since the October 2006 treatment, as the Veteran's makes reference to the same problems he had prior to the treatment in question as he now does after the treatment in question, only now indicating it is somehow part of a problem associated with VA treatment. Review of the evidence reveals that the Veteran was diagnosed with obstructive sleep apnea in February 2006 and started on CPAP therapy in May 2006. In July 2006, the Veteran was referred for additional treatment because he was not tolerating the CPAP well and, as a result, he was scheduled for uvulopalatopharyngoplasty (UPPP), tonsillectomy, and inferior turbinate cauterization in September 2006. The evidence shows that informed consent was obtained from the Veteran prior to surgery and that the Veteran was specifically provided information regarding the opening of the trachea in the neck for placement of a breathing tube. The evidence also reveals that pre-operative examination revealed that the overall appearance of the neck was normal and symmetrical with normal tracheal position, no crepitus, and no lymphadenopathy on palpation. See VA treatment records dated September 2006. The scheduled procedures were performed on October 19, 2006. Prior to surgery, the anesthesiologist noted the Veteran's prior surgical history of cervical spine fusion and that the Veteran experienced pain on extension of the neck. Nevertheless, anesthesia was administered and surgery was performed, with no complications identified during or following the procedure. See October 2006 operative report and anesthesia pre and post operative report. The Veteran was transferred to the post-anesthesia care unit (PACU) in stable condition and he reported having throat discomfort. However, post-operative evaluation was unremarkable as it pertains to the Veteran's cervical spine and the Veteran was discharged home the following day. See October 2006 Inpatient ENY consultation and discharge summary. At the post-operative ENT consultation conducted seven days after surgery, the Veteran reported that his pain was improving and objective examination revealed normal and symmetric appearance of the neck, with normal tracheal position, no crepitus, and no lymphadenopathy on palpation. See October 26, 2006 ENT consultation; see also November 2, 2006 ENT consultation. The evidence shows that the Veteran continued to complain of throat and sinus pain, but he also reported that he was starting to eat solid foods. Nevertheless, the Veteran's general appearance was normal, including the lack of deformities, and there is no evidence of increased symptoms or additional disability related to the cervical spine during the first month following surgery. See VA treatment records dated November 7 and 20, 2006. In July 2007, the Veteran reported having increased neck pain since the palate surgery in 2006, as he reported that the neck pain was radiating down the right arm into the middle three fingers. The assessment was cervical radiculopathy and cervical neural foraminal stenosis, for which the Veteran received steroid injections. See VA treatment records dated July and August 2007. However, a June 2007 MRI of the cervical spine did not reveal any significant interval change, as it reflected moderate degenerative disc spondylosis at C5-6 and C6-7, as well as mild neural foraminal narrowing on the right, which was noted to have been evaluated in the previous MRI study. Likewise, an April 2007 X-ray revealed degenerative disc and bone disease at C5-6 level and the interpreting physician noted that there was probably very little change in the cervical spine since December 2004, providing evidence against this claim. After carefully reviewing the evidence of record, the Board concludes that the requirements are not met for compensation under 38 U.S.C.A. § 1151. The evidence does not establish that the Veteran has incurred any additional disability or aggravation due to the surgical procedures performed in October 2006. As noted, the evidence shows the Veteran suffered from severe degenerative arthritis and pain in his cervical spine, with upper extremity radiculopathy, prior to the October 2006 surgery. While the Veteran reported increased pain and symptoms following the surgical procedures, the objective medical evidence does not show any additional disability or aggravation of the cervical spine disability thereafter. Indeed, the evidence shows that the Veteran reported having the same symptoms that were present prior to the surgery, e.g., neck pain radiating into his right upper extremity, and the Board finds particularly probative that the preponderance of the objective evidence shows no significant change in the clinical presentation of his cervical spine disability. In evaluating this claim, the Board notes there is no medical evidence of record that shows the Veteran's neck was hyper-extended during the October 2006 surgery or that any such hyperextension resulted in an additional cervical spine disability or aggravated the pre-existing cervical spine disability. Therefore, based on the foregoing, the Board concludes that the preponderance of the evidence shows that the Veteran does not have an additional disability that was caused or aggravated by the surgical procedures performed by VA in October 2006. With regard to the Veteran's complaints of "more pain", the Board must find that the Veteran's statements are outweighed by the post-service evidence of record, which does not indicate any objective indication of an increase in the neck problem prior to surgery. In fact, the problems the Veteran cited prior to the treatment are nearly identical to the problems he had after. Without conceding that the Veteran has an additional disability, the Board notes that, even if assuming, arguendo, that the evidence shows the Veteran has an additional or aggravated disability, there is no competent evidence of record indicating that any such additional or aggravated disability is proximately due to VA carelessness, negligence, lack of proper skill, error in judgment, or any other similar instance of fault. Nor is there any competent evidence or contention that the October 2006 surgical procedures involved any unforeseen event, or that they were nonconsensual. In evaluating this claim, the Board has considered the lay statements submitted in this claim, including the Veteran's report that his cervical spine disability was worsened by the October 2006 surgical procedures. However, the Board finds that the Veteran's subjective report of increased symptoms and aggravated cervical spine disability is outweighed by the objective medical evidence of record, which represents the most competent and probative evidence of record, as the medical evidence documents the Veteran's cervical spine disability prior to and following the October 2006 procedures and does not show any increased, additional, or aggravated cervical spine disability following the procedures. As a result, without competent evidence of an additional or aggravated cervical spine disability following the October 2006 surgical procedures and no competent evidence establishing that any such additional or aggravated disability is proximately due to fault on the part of VA, the Veteran's claim must be denied. See 38 C.F.R. § 3.358(c)(1) (2010). In summary, and for the reasons and bases set forth above, the Board finds that the preponderance of the most competent and probative evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application, and he is not entitled to compensation under 38 U.S.C.A. § 1151. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2008 that fully addressed all required notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. Therefore, the Board concludes that all proper notice has been provided to the Veteran. The Board has carefully considered the issue of whether a VA examination and opinon is warranted in this case. Under the VCAA, VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. In this case, there is nothing in the record to indicate that the Veteran has anything more in terms of a disability then he had at any time prior to the treatment in question. The severity of the Veteran's neck disability was clearly indicated in the record prior to the VA treatment in question and nothing in the medical record indicates a greater problem after the treatment in question. Further, there is more than enough medical evidence in this case to make a decision on this claim, at this time. The post-service treatment records provides extensive evidence regarding the Veteran's pre-treatment disability and a totally lack of any indicated of a increase in the problem prior to the treatment in question other than the Veteran's subjective statements (which have been found to be outweighed by the post-service treatment records themselves, which are found to provide highly probative evidence against this claim). As any VA medical opinion regarding this issue would have to be based on these treatment records and the Veteran's subjective complaints, and the Board has found the treatment records provides only factual evidence against the claim, outweighing the subjective complaints of the Veteran, a VA medical opinion can provide no basis to grant this claim. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained treatment records from VA, the Social Security Administration, and private health care providers dated from 1991 to 2006. Significantly, it appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to disability compensation under 38 U.S.C.A. § 1151 for cervical spine pain, nerve damage, and degenerative arthritis, claimed to have resulted from surgical treatment of obstructive sleep apnea at the Shreveport, Louisiana VAMC in October 2006, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs