Citation Nr: 1201713 Decision Date: 01/17/12 Archive Date: 01/30/12 DOCKET NO. 07-12 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of L4-5 lumbar disc surgery. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant; S.S.; and C. B.,M.D. ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to August 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the claim. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2009. A transcript of this hearing has been associated with the Veteran's VA claims folder. In August 2009, the Board remanded this case for further development, to include obtaining relevant VA medical records regarding his lumbar spine disorder and the surgical procedure that is the focus of this appeal. Such medical records were added to the file, and all other development directed by the Board's remand appears to have been completed. Thus, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In August 2011, the Board requested a medical expert opinion from a member of the Veterans Health Administration (hereinafter, "VHA opinion") in accord with VHA Directive 20006-019 (April 3, 2006), 38 U.S.C.A. §§ 5103A, 7109 and 38 C.F.R. § 20.901. The requested opinion was subsequently promulgated in September 2011, the Veteran was provided with a copy of this opinion, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903. FINDINGS OF FACT 1. All reasonable notification and development necessary for the equitable disposition of the instant case have been completed. 2. The Veteran underwent microdiscectomy of his lumbar spine at a VA medical facility in August 2003, and a redo discectomy in December 2003. 3. Compensation has already been established under the provisions of 38 U.S.C.A. § 1151 for dyschezia with abnormal anal sphincter relaxation due to the 2003 VA discectomy procedures. 4. The preponderance of the competent medical and other evidence of record reflects that the Veteran's post-service lumbar spine symptoms were the result of the natural progress of the disability, and not the result of the August and/or December 2003 VA surgical procedures. 5. To the extent the record indicates the Veteran developed additional lumbar spine disability as a result of the August and/or December 2003 VA surgical procedures, the preponderance of the competent medical and other evidence of record is against a finding that it was the result of carelessness, negligence, lack of proper skill, error in judgment, lack or appropriate supervision, or a similar instance of fault on the part of VA treatment providers. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for a lumbar spine disability resulting from VA surgical treatment in 2003 are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.361 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in November 2005, which is clearly prior to the June 2006 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in February 2007 and August 2009, followed by readjudication of the appeal by a January 2011 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. Moreover, the Veteran was provided with the information regarding disability rating(s) and effective date(s) mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate this 38 U.S.C.A. § 1151 claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. Various records were obtained and considered regarding this appeal. Further, the Veteran has had the opportunity to present evidence and argument in support of this 38 U.S.C.A. § 1151 claim, to include at the August 2009 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. With respect to the aforementioned August 2009 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, effective August 23, 2011, VA regulations were amended to clarify that the hearing provisions in 38 C.F.R. § 3.103, which were cited by the Court in Bryant, only apply to hearings before the agency of original jurisdiction (i.e., the RO in this case) and do not apply to hearings before the Board. Board hearings are instead governed the hearing provisions in 38 C.F.R. Part 20, subpart H. As such, the duties Bryant imposed on Board Members to suggest the submission of additional evidence are no longer for application. See 76 Fed. Reg. 52,572-52,575 (August 23, 2011). Moreover, the Board notes that even if the holding of Bryant were applicable to this case, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the August 2009 Board hearing. The Board further notes that multiple medical opinions were obtained in conjunction with this case to address the Veteran's current claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of lumbar disc surgeries. As detailed below, he was accorded VA medical examinations in June 2005, January 2006, and July 2008, which included opinions as to whether additional disability resulted from the 2003 surgeries, and, if so, whether there was any fault on the part of the VA. The Veteran also submitted medical evidence in support of his contentions including statements and testimony from C. B., M.D. (hereinafter, "Dr. B"). Further, as noted in the Introduction, a VHA medical opinion was promulgated in September 2011 which addressed the relevant issues of this case, and provided detailed rationale in support of the conclusions contained therein. As the VHA opinion was based upon a thorough review of the Veteran's VA claims folder, to include the aforementioned VA examinations and Dr. B's opinions, the Board finds that is supported by an adequate foundation. Moreover, the clinician who completed this opinion has an extensive background in neurosurgery, cited medical treatise evidence in support of his rationale, and no prejudice is demonstrated with respect to his conclusions. Therefore, the Board finds that the September 2011 VHA opinion is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria Under the current provisions of 38 U.S.C.A. § 1151 compensation 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. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation implementing 38 U.S. C.A. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that (1) Care, treatment, or examination. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider . . . . 38 C.F.R. § 3.361(d). Analysis The Veteran asserts that compensation under the provisions of 38 U.S.C.A. § 1151 for a chronic post-operative lumbar spine disorder is warranted as his August 2003 and December 2003 VA surgical procedures were improperly conducted. The Board observes that the Veteran's claim involves complex medical issues, which are generally not subject to lay observation. In short, competent medical evidence is necessary to resolve this claim. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Board acknowledges that an August 2003 VA hospital summary and associated clinical documentation conveys that the Veteran complained of an acute onset of radiating left lower extremity pain and bilateral leg numbness. The Veteran was diagnosed with a left L4-5 herniated nucleus pulposus with L5 radiculopathy. He underwent a left L4-5 microdiscectomy. The operation was noted to have "proceeded without complication." Treating medical personnel observed that the Veteran experienced "no complication during his hospital course" and the "complete resolution of his left lower extremity symptoms." The Veteran was discharged to his home on one day following the procedure. Thereafter, a September 2003 VA treatment record states that the Veteran complained of a reoccurrence of his left lower extremity radiating pain and perianal numbness. Contemporaneous magnetic resonance imaging of the lumbar spine revealed findings consistent with "recurrent L4-5 disc herniation and root compression." The Veteran was diagnosed with a left L4-5 herniated nucleus pulposus. A December 2003 VA hospital summary reports that the Veteran had undergone an August 2003 L4-5 microdiscectomy "for freed fragment;" initially experienced a "resolution of his symptoms;" and subsequently manifested severe low back pain and intermittent left lower extremity radicular pain. The Veteran was diagnosed with lumbar disc degeneration. He underwent a redo discectomy with left L4-L5 transforaminal lumbar interbody fusion. As detailed below, there are competent medical opinions which both support and refute the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of L4-5 lumbar disc surgery. The report of a June 2005 examination for compensation purposes states that the Veteran was diagnosed with "L4-L5 disk pathology" and "decreased lower rectal sphincter function." The examiner commented that: [H]e had a minidiskectomy in 08/03 which was unsuccessful in controlling the pain, and has resulted in ongoing difficulty in control of his rectal sphincter function. He had subsequent fixation surgery of L4 to L5 in 12/03, but still has continued left L4-L5 radicular pain and L3 to L4 and L4 to L5 numbness. He is also starting to show some symptoms of L3 to L4 irritation in the right extremity. ... Decreased lower rectal sphincter function; this did begin after the minidiskectomy surgery and appears related to it. Compensation under the provisions of 38 U.S.C.A. § 1151 for dyschezia with abnormal anal sphincter relaxation has been granted. The report of a January 2006 examination for compensation purposes states that the Veteran was diagnosed with "status post decompressive lumbar laminectomy L4-5;" "status post open reduction and internal fixation L4-5 with residual left lower extremity L5 radiculopathy;" and associated "low back pain mechanical." The examiner opined that: Based on the patient's medical records and history and physical, I believe it is as likely as not that this spine condition is a continuation of a natural progression of a disease or injury for which the hospitalization and medical and surgical treatment was furnished for the conditions and diagnoses above and these do not correlate to injury while on military service in addition to the normal wear and tearing of aging. This is related indirectly as likely as not due to the sustaining low back injury in 02/03 after pulling a boat out of the water as described by the patient. The report of a July 2008 examination for compensation purposes states that the Veteran complained of chronic back pain. The Veteran's history of repeated lumbar spine surgery was noted. The examiner opined that: He now has continued pain, and total outcome has not been good for him. After checking all available material, it seems more likely than not that his continued problems are related to his disc injury and natural progression, rather than any negligence in treatment. My opinion is as follows ----This Veteran's current lumbar spine condition was not caused by carelessness, negligence, lack of proper skill, or error in judgment, or, not a reasonably expected result or complication of the VA care or treatment. In support of the Veteran's claim, an August 2008 written statement from Dr. B notes: It is my opinion that the surgery done by PGY-3 resident C[ ] on 11 Aug 2003 was of poor quality and did not adequately remove the L4-5 disc and due to poor skill and technique resulted in new neurological signs and symptoms which required re-operation by a PGY-7 resident and chief of Neuro-surgery on 3 Dec 2003 ... . The patient had to undergo a second likely unnecessary surgery for his L4-5 disc due to an incorrect surgery by Dr. C[ ] on 11 Aug 2003 as the expected outcome of this surgery is to have near total removal of the disc with resolution of neurological symptoms. In other words, this patient did not have the expected outcome of his surgery, as per Greenberg's Handbook of Neurosurgery, very likely due to poor PGY 3 operative technique or poor attending supervisory care. At the June 2009 hearing before the undersigned VLJ, Dr. B testified that the August 2003 VA was done by a resident who performed "the wrong surgery" and exhibited "poor judgment and poor skill." He also submitted a statement indicating that the Veteran's new neurologic problems were not all the expected outcome of the two surgeries. His significant bowel, bladder and sexual dysfunction; muscle spasms; numbness in the legs; and tingling in his feet were due to poor skill and/or judgment on the part of the junior resident (PGY 3) who performed the August 2003 surgery. Dr. Bash opined that the "surgical technique or choice of portion was incorrect." He also opined that the bad outcomes were not foreseen. A friend of the Veteran testified that the Veteran was unable to accomplish heavy lifting or driving since the surgery. The Veteran also testified regarding his symptoms of pain and numbness in the legs. In light of the nature and the complexity of the issues raised, the Board concluded that a VHA medical opinion was required in this case. After detailing the facts of this case, the Board requested that a neurosurgeon provide an opinion, with a complete rationale, addressing the following questions: 1. Did the August 2003 and/or the December 2003 VA lumbar spine surgical procedures result in additional chronic disability OR cause the continuation of the natural progress of the disease/injury? If so, is any currently diagnosed lumbar spine and/or associated neurological disability the result of the surgical treatment? 2. If so, is any additional chronic disability or continuation of the natural progress of the disease/injury the result of either the VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault and did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? In addition, would a reasonable surgeon have selected a minidiskectomy as the proper procedure to perform in August 2003. 3. Was the proximate cause of the Veteran's additional disability an event that was not reasonably foreseeable based on what a reasonable health care provider would have foreseen? [Note: regarding not reasonably foreseeable events, an 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. Is the risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures?] In response to the Board's questions, a VHA opinion was completed by a VA neurosurgeon in September 2011 and concluded, in essence, that the Veteran's "defecation problem" was the result of the 2003 surgeries, and that it was a result of an event not reasonably foreseeable in that it was very rare occurrence and had been reported to be 0.08 to 0.2 percent. As already noted, however, compensation under the provisions of 38 U.S.C.A. § 1151 for dyschezia with abnormal anal sphincter relaxation has been granted. With respect to the matter of whether the Veteran developed additional disability of the lumbar spine as a result of the 2003 lumbar spine surgeries (i.e., Question 1), the VA neurosurgeon noted that the recurrence of a disc herniation after proper lumbar discectomy was a well-known event in the field of spine surgery and was one of the most common complications following a primary discectomy. It was noted that most of the authors in the spine literature report a rate of 6 to 12 percent for this occurrence. In order to reduce the risks of recurrence, it was noted that certain surgeons had opted to perform a more aggressive and complete discectomy at the time of the initial surgery, and it was noted that there was a lower recurrence rate of disc herniation with aggressive discectomy compared to microdiscectomy. The opinion also noted that failure to alleviate leg pain and back pain or early recurrence of these symptoms was also a common event following discectomy (aggressive or minimal) with an incidence of 14 percent. The opinion cited the sources for these figures. Finally, the opinion noted the Veteran's specific symptomatology, and that they occur often time following lumbar spine surgery but also very frequently with natural progression of the disease. Nevertheless, when a patient experiences some improvement of his symptoms, as it was the case for the Veteran, it was typically understood that further symptoms were more likely to be related to progression of the disease rather than a direct results of the surgery itself. Therefore, in this case, the current disability of the Veteran related to leg pain, numbness and paresthesia as well as the chronic low back pain was more likely related to natural progression of the degenerative spine disease rather than a consequence of the spinal procedures. In regard to Question 2, the VA neurosurgeon stated that none of the symptoms described or experienced by the Veteran were the results of negligence, carelessness or lack of proper skill by the treating team. As for Dr. B's testimony that the initial surgery was conducted by a junior resident, Dr. C who was a PGY-3, it was noted that the operative report listed the operative surgeon as Dr. A. D., a senior resident/fellow PGY-7. Further, it was noted that Dr. C was listed only as a second assistant and the attending physician, as the first assistant. The report was dictated by Dr. D. Therefore, the VA neurosurgeon concluded that this suggested an appropriate level of supervision during the procedure. Moreover, given the symptoms of the Veteran and the appearance on MRI, the VA neurosurgeon concluded that the lumbar microdiscectomy was an appropriate procedure. It was noted that experts in the field of spine surgery argue between the superiority of aggressive discectomy versus microdiscectomy. As discussed earlier, the evidence suggests that aggressive discectomy carries less risks of disc re-herniation. However, the risk of chronic low back pain and leg pain was higher than in the case of the microdiscectomy. Based on these findings, an aggressive lumbar discectomy may have put the patient at higher risks to suffer from chronic low back pain and leg pain, which were the current causes of disability. in that sense, the VA neurosurgeon concluded that microdiscectomy was a better choice. Regarding Question 3, the VA neurosurgeon reiterated that the only complication not reasonably foreseeable was the "defecation" problem. In general, the risks of disc re-herniation, chronic low back pain, persistent leg pain, and bladder or bowel incontinence will be explained to the patient as part of the informed consent; and that all of these complications have been described in relation to lumbar discectomy. As detailed above, the September 2011 was completed by a VA clinician with extensive experience in neurosurgery; was based upon a thorough review of the Veteran's VA claims folder, including the aforementioned medical opinions which both supported and refuted the Veteran's current 38 U.S.C.A. § 1151 claim; the rationale provided citations to medical treatise evidence; and no prejudice is demonstrated with respect to this opinion. Further, an attachment to the VHA opinion reflects that the VA neurosurgeon's Chief, Surgical Care Line, concurred with the conclusions of the September 2011 VHA opinion. Therefore, the Board finds that it is entitled to the most weight regarding the issues relevant to the adjudication of this appeal. The September 2011 VHA opinion concluded that the Veteran's present lumbar spine symptoms were due to the nature progression of his degenerative joint disease, and not the 2003 lumbar spine surgeries. Further, this opinion is consistent with that of the January 2006 and July 2008 VA examinations. In short, the majority of medical clinicians who have evaluated this claim have come to this conclusion. More importantly, the September 2011 VHA opinion reflects that to the extent the record indicates the Veteran developed additional lumbar spine disability as a result of the August and/or December 2003 VA surgical procedures, the preponderance of the competent medical and other evidence of record is against a finding that it was the result of carelessness, negligence, lack of proper skill, error in judgment, lack or appropriate supervision, or a similar instance of fault on the part of VA treatment providers. The September 2011 VHA opinion specifically refuted the bases provided by Dr. B in support of the Veteran's claim. The VHA reviewer specifically noted that the surgery was performed by a PGY-7 senior resident/fellow, which the Board finds is consistent with the August 2003 operative report. Additionally, the September 2011 VHA reflects that the symptomatology described by the Veteran is a reasonably foreseeable consequence of such lumbar surgeries. While the informed consent signed by the Veteran in advance of the both surgeries was general, the Veteran did specifically indicate on the form that the risks and benefits had been explained to him. The Veteran now asserts that he was informed there was less than a .02 percent chance of complications and he was not informed what type of complications could result. The VA physician indicated that the risks of disk re-herniation, chronic low back pain, and persistent leg pain will generally be explained as part of the informed consent and that all of these complications have been described in relation to lumbar discectomy. The Board finds that VA substantially complied with the informed consent requirements of 38 C.F.R. § 17.32. In that regard, there is no indication that the Veteran did not have decision-making capacity and that he was unable to communicate decisions concerning his health care at the time of the surgeries. The Veteran indicated on the consent forms that his consent was freely given after a careful explanation of the course of treatment and that the risks, benefits and alternatives had been explained to him. The Veteran also indicated on the consent forms that he was given an opportunity to ask questions and to indicate comprehension. The Board finds credible and highly probative the consent forms signed by the Veteran, which indicate that at the time of the surgeries he was aware of the risks and that he was provided with an opportunity to ask questions and to indicate comprehension. This outweighs current statements that he was unaware what type of complications could result. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of lumbar disc surgery. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. (CONTINUED ON NEXT PAGE) ORDER Compensation under 38 U.S.C.A. § 1151 for residuals of L4-5 lumbar disc surgery is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs