Citation Nr: 1315598 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-16 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a low back disorder, claimed as the residual of physical therapy (traction) performed at a Department of Veterans Affairs (VA) medical facility in March 2007. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from August 1978 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2010, the Veteran presented testimony relevant to the appeal at a Board hearing held before the undersigned Veterans Law Judge (VLJ) at the RO in Philadelphia, Pennsylvania. A transcript of the hearing is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge 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. In this case, the undersigned VLJ identified the issues on appeal and posed several questions during the course of the hearing in order to solicit additional information from the Veteran regarding the history of treatment for back pain, the physical therapy received by VA in March 2007, and the symptomatology believed to be related thereto. The undersigned also attempted to ascertain whether there was additional evidence that should be submitted or obtained pertinent to the claims. The record was held open for 30 days following the Board hearing in order to allow the Veteran additional opportunity to submit evidence in support of the appeal. In May 2010, additional evidence pertinent to the appeal was received accompanied by waiver of the Veteran's right to its initial consideration by the agency of original jurisdiction (AOJ). In light of the foregoing actions, the Board finds that the undersigned VLJ sufficiently explained the issues on appeal and suggested additional evidence that may be submitted in support of the appeal at the Board hearing. In August 2010 and May 2012, the Board remanded the issues of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a low back disorder and entitlement to a TDIU in order to obtain updated VA treatment records, afford the Veteran with further medical examination, obtain a medical opinion, and, subsequently, readjudicate the claims. The record shows that updated VA treatment records have been obtained and included in the Veteran's Virtual VA folder, the Veteran was afforded with another medical examination, an adequate medical opinion was obtained addressing the § 1151 claim, and the issue was subsequently readjudicated. Although the Veteran's TDIU claim was not formally readjudicated as ordered by the Board in the May 2012 Remand, the Board finds that the failure to do so is harmless error. An employee at the Appeals Management Center handwrote "moot" next to the issue of entitlement to a TDIU on the first page of the May 2012 Board decision included in the record. For reasons explained in greater detail below, the award of compensation benefits for a low back disorder pursuant to the provisions of 38 U.S.C.A. § 1151 is not warranted, and the Veteran is only service-connected for PTSD, which is rated as 100 percent disabling throughout the period at issue. Therefore, the Veteran's TDIU claim is dismissed as moot. In consideration thereof, the Board finds that there has been substantial compliance with the ordered development. D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran's representative has raised a claim for entitlement to an earlier effective date for the award of a 100 percent schedular rating for generalized anxiety disorder in the April 2013 Written Brief Presentation. As the issue has not yet been adjudicated by the RO, the Board has no jurisdiction over the matter. It is, therefore, REFERRED to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran does not have additional low back disability due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care. 2. The Veteran does not have additional low back disability proximately caused by an event not reasonably foreseeable. 3. As the Veteran is only service-connected for generalized anxiety disorder with a 100 percent schedular rating throughout the rating period, the issue of entitlement to a TDIU is moot. CONCLUSIONS OF LAW 1. The Veteran is not entitled under the law to compensation benefits under to the provisions of 38 U.S.C.A. § 1151 for a low back disorder, claimed to be proximately caused by negligence on the part of VA in furnishing medical care or an event not reasonably foreseeable. 38 U.S.C.A. §§ 1151, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.154, 3.159, 3.361 (2012). 2. The question of whether the Veteran is entitled to an award of TDIU is now moot, warranting dismissal of the appeal as to that issue. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.14, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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). 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a September 2007 notice letter sent prior to the initial denial of the claims, the RO advised the Veteran of what the evidence must show to establish entitlement to compensation under 38 U.S.C.A. § 1151, as well as a TDIU, and described what evidence that the Veteran should provide in support of the claims. The RO explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The Veteran was advised of how VA assigns a disability rating and an effective date once the award of benefits has been established. Thus, as the Veteran was provided with adequate notice with respect to the claims by way of the September 2007 pre-adjudication notice letter, VA's duty to notify has been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. In regard to VA's statutory duty to assist in claims development, the Board notes that treatment records adequately identified as relevant to the appeal have been obtained, and are associated with the record. Written statements from the Veteran are also included. Additional records pertinent to the appeal are found in the Veteran's electronic folder through Virtual VA and were previously considered by the AMC. The Veteran's social security records have also been obtained and are of record. After the Veteran consented to having his VA medical examination performed at the Philadelphia VAMC, a VA medical examination was scheduled pursuant to the August 2010 Board Remand order. The medical examination was performed in October 2010. Although the October 2010 VA medical examiner provided a medical opinion at that time, it was inadequate in addressing whether the Veteran suffered additional disability due to VA negligence or fault. For this reason, the Board remanded the § 1151 appeal to obtain a supplemental medical opinion. A medical opinion was obtained from the October 2010 VA medical examiner in May 2012; however, the medical opinion was inadequate as it addressed whether the Veteran's low back disorder was related to service, rather than whether there was additional low back disability due to VA negligence or fault. The AMC asked for another medical opinion. In response, the Chief of Orthopedic Surgery at the Philadelphia VAMC provided the requested medical opinion. Although he had not performed the October 2010 examination of the Veteran, he provided a summary of the relevant facts contained in the record as it related to the Veteran's history of treatment for back pain and provided sound rationale for the medical opinion. The October 2010 VA medical examiner had been allowed the opportunity to furnish an adequate medical opinion addressing the questions posed by the Board in the prior remand orders but had not done so. For these reasons, the Board finds that the March 2013 VA medical opinion is adequate for the purpose of this adjudication and no further medical opinion is needed. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims adjudicated herein. In view of the foregoing, the Board will proceed with appellate review. Compensation benefits under 38 U.S.C.A. § 1151 Analysis In analyzing claims under 38 U.S.C.A. § 1151, it is first important to note that the law underwent significant amendment, effective for claims filed on or after October 1, 1997. Because the Veteran filed his claim under the provisions of § 1151 claim in 2006, the post-October 1, 1997, version of the law and regulation will be applied. 38 C.F.R. § 3.361; VAOPGCPREC 40-97. 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). When a veteran suffers an injury or an aggravation of an injury resulting in additional disability or death as the result of VA training, hospitalization, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death were service connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. In determining whether a veteran sustained 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. 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 the veteran's additional disability or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, does not establish cause. 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. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). 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 death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations as to 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. 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. 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 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. As specified in 38 C.F.R. § 3.361(d)(2), 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. The Veteran contends that he received physical therapy at the VA medical facility in Philadelphia, Pennsylvania. He asserts that his sciatic nerve was first damaged when he was initially put in traction and resulted in pain radiating down the left leg. The Veteran asserts that his sciatic nerve was further damaged when performing a stretch involving the right leg during physical therapy, which resulted in pain radiating down the right leg. He maintains that he has to take medication daily for pain affecting both legs but it does not help. See June 2012 VA Form 21-4138; see also July 2007 Disability Determination Services report. Review of the Veteran's VA treatment records show that he received medical treatment on multiple occasions for complaints of back pain radiating into the legs in the months prior to receiving physical therapy in March 2007. In January 2007, the Veteran sought medical treatment through his primary care provider for complaint of lower back pain reportedly worsened since recently starting a new job that required heavy lifting. In February 2007, the Veteran was seen and measured for a lumbar brace by physical therapy as recommended by his treating neurologist. The Veteran also underwent magnetic resonance imaging (MRI) of the lumbar spine. The February 2007 MRI report references the Veteran's clinical history of low back pain radiating down the legs and includes impressions of "L5-S1 disc desiccation with posterior subligamentous disc herniation, moderate AP spinal canal narrowing and minimal neural foraminal encroachment" and "L4-5 paramedian to the right disc protrusion with encroachment on the right neural foramina, and moderate anterior spurring at L5-S1 with disc desiccation." On March 1, 2007, the Veteran presented for physical therapy consultation for lumbar evaluation. At that time, he reported that he had received physical therapy before and had temporary relief and still performed some of the exercises at home but had never tried traction. The physical therapist noted that the Veteran presented with increased pain, decreased range of motion, strength, and function and findings suggested lumbar radiculopathy and decreased lower extremity muscle length increasing stress into the lumbar spine during activities. The therapist noted that the Veteran may benefit from a trial of mechanical traction. On March 6, 2007, the Veteran underwent physical therapy. It was noted that the treatment was completed without obvious adverse effect and the Veteran reported no relief from the traction modality. The physical therapist commented that he had had difficulty placing pads into place without causing the Veteran concern. The physical therapist later wrote, in an addendum note dated March 14, 2007, that the Veteran was unable to tolerate the attempt at intermittent traction in any position and, although the initial trial would have been for twelve minutes, the treatment was stopped five minutes after it began due to the Veteran's vocalized complaints of claustrophobia. On March 13, 2007, the Veteran called to cancel his physical therapy appointment and stated that he had experienced increased low back pain and lower left extremity pain since his last physical therapy session when placed on traction. He stated that he was having difficulty standing up and walking, had been lying down for most of the day, and the pain medication was not helping. He also told the physical therapist that his low back pain had never been so severe and he would never agree to be put in traction again. The physical therapist recommended that the Veteran go to the emergency room to be examined. The same day, the Veteran presented to the emergency room for treatment of worsened lumbar back pain radiating to the left leg. The Veteran reported that he had experienced significantly worsened back pain since being placed in traction the prior Tuesday (i.e., March 6, 2007). The Veteran showed difficulty walking and was given pain medication before being discharged from the emergency room. On March 14, 2007, the Veteran called and told his primary care provider that neither the visit to the emergency room nor the pain medication provided was helpful. On March 15, 2007, the Veteran again called his primary care provider with complaint of unbearable low back pain traveling down the legs. The primary care provider recommended that the Veteran go the nearest emergency room for evaluation. The Veteran returned to the emergency room and was noted to be in marked distress. The noted impression was worsening back pain after participation in physical therapy traction. The Veteran was given pain medication, which decreased the pain, and was noted to have been ambulating with a limp when leaving the emergency room upon discharge on March 16, 2007. When the Veteran was subsequently seen by a treating neurologist on March 22, 2007, the noted impression was exacerbation of low back pain and sciatica. Subsequent VA treatment records show that the Veteran continued to take prescription medication to treat the low back pain and associated lower extremity pain. A June 2007 electromyography (EMG) study showed abnormal findings consistent with L5-S1 lumbosacral radiculopathy on the left, with ongoing muscle denervation. In July 2007, the Veteran told a treating medical provider that his back pain level had lessened with current medication. When a medical consultant reviewed the Veteran's Psychiatric Review Technique Form in August 2007 in connection with his claim for social security disability benefits, the consultant noted that the Veteran demonstrated a positive straight leg raise in the supine position at his consultative examination but had a negative straight leg raise while sitting. The consultant noted that the results were a positive Waddell's sign for psychogenic overlay and, while the symptom was accepted, the level of severity was open to question as the Veteran was only partially credible. See Dorland's Illustrated Medical Dictionary 1341 (30th ed. 2003) (defining psychogenic overlay as "the emotionally determined increment to an existing organic symptom or disability"). More recently, in January 2009, the Veteran informed his VA primary care provider that he continued to have some low back pain but had decided to defer back surgery as his sciatica symptoms were now under control. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran suffers from additional back disability due to VA negligence or fault or an event not reasonably foreseeable. In a March 2013 medical opinion, a VA physician specializing in orthopedic surgery (J.E., MD) summarized the Veteran's relevant medical history and noted that the record reflected that the Veteran had a transient aggravation of his nonservice-connected chronic intractable lumbar spine pain symptoms after his traction on March 6, 2007. The VA medical reviewer wrote that the Veteran had had years of pain before the traction and had not responded to other modalities; therefore, it was "certainly legitimate" to attempt traction as a modality. The VA medical reviewer then noted that the Veteran subsequently improved without surgery and demonstrated normal gait, sensation, and muscle strength on examination performed in February 2013. The VA medical reviewer, thereafter, concluded that the Veteran's low back disorder was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel, or an event not reasonably foreseeable. The VA medical reviewer based his medical opinion on review of the record. The summary provided by the medical reviewer of the relevant treatment records is consistent with the record. The VA medical reviewer also provided a sound rationale in support of the conclusion. There is no competent medical opinion to the contrary of record. For these reasons, the reviewer's opinion is afforded great probative value. Although the Veteran has repeatedly contended that he suffers from damage to the sciatic nerve and increased pain the back and legs due to VA fault or an event not reasonably foreseeable, the Board affords the opinion provided by the March 2013 VA reviewing physician more probative value. The VA medical reviewer, unlike the Veteran, has medical training and expertise and is able to render a competent opinion with respect to the medical question of whether the Veteran has additional disability caused by VA negligence or fault or an event not reasonably foreseeable; therefore, the VA . The Veteran, as a layperson without relevant medical qualifications, is not competent to render such a medical opinion and, therefore, his opinion is afforded significantly less probative value. Furthermore, although the Veteran wrote in the June 2012 statement that he continued to take medication to treat the pain without any relief, the assertion is inconsistent with recent treatment records. See, e.g., January 2013 addendum of primary care provider (noting that the Veteran's pain was fairly well controlled at that time); November 2012 VA primary care follow-up note (noting the Veteran's self-report of continued sciatica down posterior bilateral lower extremities but that the symptoms were less). The Board finds the medical records to be more credible and affords them greater probative value than the Veteran's lay assertion. Therefore, upon consideration of the foregoing, the Board finds that the preponderance of the evidence weighs against finding that the Veteran suffers from additional low back disability due to any negligence or fault of VA in administering physical therapy in March 2007 or an event not reasonably foreseeable. Because the Board concludes that the preponderance of the evidence is against the claim, entitlement to compensation benefits under 38 U.S.C.A. § 1151 is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Analysis Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1) (2012). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2) (2012). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In May 2012, the Board granted a 100 percent schedular rating for the Veteran's service-connected generalized anxiety disorder effective April 27, 2006, one year before the Veteran filed the increased rating claim. As stated above, the Board remanded the Veteran's claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151, as well as the TDIU claim, at that time. The Veteran's TDIU claim was remanded pending the additional development ordered for the § 1151 appeal and in recognition of the Court's holding in Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under the facts presented in that case, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. The facts presented in this case are distinguishable from the Bradley case because the Veteran is only service connected for one disability, generalized anxiety disorder, which is rated as 100 percent disabling throughout the period at issue. If the Veteran were to be awarded a TDIU based on his only service-connected disability, it would impermissibly result in the same disability being "counted twice" in the assignment of a total rating. See generally 38 C.F.R. § 4.14. In consideration thereof, the Board finds that the issue of entitlement to a TDIU must be dismissed as moot. (CONTINUED ON NEXT PAGE) ORDER Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a low back disorder, claimed as the residual of physical therapy (traction) performed at a VA medical facility in March 2007, is denied. The issue of entitlement to a TDIU is dismissed as moot. ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs