Citation Nr: 1318208 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-36 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999. 2. Entitlement to a compensable disability rating for otitis externa. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne INTRODUCTION The Veteran had active service from September 1967 to August 1969, from August 1969 to August 1971, and from November 1972 to January 1990, including in combat in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claims of entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999 and entitlement to a TDIU. This matter also is on appeal from a June 2009 rating decision in which the RO denied the Veteran's claim for a compensable disability rating for otitis externa. Although the Veteran initially requested a Travel Board hearing when he perfected a timely appeal in May 2010, he subsequently withdrew his Board hearing request in June 2010 correspondence. See 38 C.F.R. § 20.704 (2012). In March 2013, the Board sought a medical expert opinion from the Veterans Health Administration (VHA) concerning the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999. The VHA opinion was date-stamped as received by the Board in April 2013. Pursuant to 38 C.F.R. § 20.903 (2012), the Veteran was provided a copy of this opinion in April 2013 and given 60 days to submit additional evidence or argument. He responded later in April 2013. His service representative also responded in May 2013. The issues of entitlement to a compensable disability rating for otitis externa and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The record evidence shows that the Veteran's disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder were not proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder, claimed as a result of VA outpatient treatment in prescribing Zocor (simvastatin) in October 1999, under the provisions of 38 U.S.C.A. § 1151, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in June and August 2008 and in February 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter informed the Veteran to submit medical evidence demonstrating that his disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder were the result of negligent VA outpatient treatment in October 1999 (when he was prescribed Zocor (simvastatin)) and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in all of the VCAA notice issued to the Veteran and in separate correspondence dated in March 2009 and in August 2010, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support granting the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999 ("1151 claim"). Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the June and August 2008 VCAA notice was issued prior to the currently appealed rating decision issued in October 2008; thus, this notice was timely. Because the Veteran's 1151 claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. In September 2010, the Veteran submitted additional evidence concerning his 1151 claim directly to the Board. This evidence was submitted after this case had been transferred to the Board by the RO. It also was submitted without a waiver of RO jurisdiction in the first instance. See 38 C.F.R. §§ 19.37(b), 20.1304(c) (2012). A review of this evidence shows that the Veteran received several epidural steroid injections in his cervical spine in June and August 2010. The Veteran does not contend, nor does this evidence indicate, that it pertains to his 1151 claim. As noted in the Introduction, both the Veteran and his service representative submitted additional argument in support of his 1151 claim in April and May 2013. Attached to the Veteran's April 2013 argument was a copy of a "Medical Opinion Response Form" in which he checked a box stating, "I have no further argument or evidence to submit, and I would like the Board to immediately proceed with the adjudication of my appeal." (Emphasis in original.) This suggests that the Veteran has waived his procedural right to have the evidence that he submitted in September 2010 sent back to the RO for review. Given the foregoing, the Board finds that a remand to obtain a waiver of RO jurisdiction over the evidence submitted in September 2010 is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). The record evidence includes VA and private outpatient treatment records, including VA treatment records concerning treatment of his non-service-connected hyperlipidemia with Zocor (simvastatin) beginning in October 1999, and a VHA clinician's opinion dated in March 2013 which addresses the contended causal relationship between the Veteran's VA outpatient treatment in October 1999 and disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder which allegedly resulted from this treatment. After review of the March 2013 VHA opinion, the Board finds that it provides competent, non-speculative evidence regarding the claimed etiology of the Veteran's disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder. Thus, the Board concludes that an examination is not required even under the low threshold of McLendon. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Factual Background The Veteran's VA outpatient treatment records show that he has been treated for complaints of cervical spine, thoracolumbar spine, stomach, and left shoulder disabilities since his service separation. These records also show that he has been treated for hyperlipidemia since active service. For example, he was hospitalized for 5 days at a VA Medical Center (VAMC) from August 25-30, 1971, approximately 2 weeks after his service separation on August 11, 1971, at the end of his second period of service, for a history of intermittent epigastric pain which had begun while he was on active service in Vietnam "where similar symptoms were present in many of the soldiers and associated with diarrhea" and had lasted for 6 weeks. It was noted that the Veteran's diarrhea had improved with treatment and his abdominal pain had improved "but has been recurrent intermittently" and "had been more frequent and persistent since his discharge from the Army" on August 10, 1971. The Veteran's bowel movements had been regular. Physical examination showed a soft and flat abdomen with mild epigastric tenderness and no palpable organs or masses. X-rays of the upper gastrointestinal tract were normal. The Veteran was treated with a bland diet and Donnatal tablets "before meals and at bedtime [his] abdominal discomfort disappeared." The discharge diagnosis was gastroenteritis, cause undetermined. On VA outpatient treatment in May 1991, the Veteran complained that "his stomach is still burning." Physical examination showed mild mid-epigastric distress. X-rays showed a gastric antral ulcer and a duodenal bulb ulcer. The impressions included gastric antral ulcer and a duodenal bulb ulcer. The Veteran was advised to continue taking Zantac and Maalox. In September 1991, it was noted that an upper gastrointestinal (UGI) series showed "ulcer still present" with thickened folds and right upper quadrant calcifications. The Veteran stated that his symptoms had improved with Maalox and Zantac. Objective examination showed a soft, non-tender abdomen with normal bowel sounds and a slightly enlarged liver. The assessment was peptic ulcer disease. The Veteran was advised to continue taking his medication. On VA examination in November 1991, the Veteran's complaints included stomach problems for 5 years which he described as "stomach burn," indigestion, dizziness, gas, stomach pains, and burning in his chest. He stated, " I did not realize that I had ulcers until I had a[n] upper GI in June 1991. While I was on active duty in the military, my stomach would start to burn when I was nervous [or] upset and I would get a lot of stomach gas." The Veteran reported that his symptoms were relieved "by Maalox or other antacid." A recent UGI series showed marked abnormalities consistent with old and present peptic ulcer disease with reflux. Physical examination showed a soft, symmetric abdomen with no fluid, positive bowel sounds, mild mid-epigastric tenderness, and no masses or organomegaly. The diagnosis was symptomatic chronic gastric and duodenal ulcer. The Veteran was advised to undergo an esophagogastroduodenoscopy (EGD). On VA outpatient treatment in April 1999, a history of hyperlipidemia was noted. It also was noted that the Veteran's peptic ulcer disease was controlled with Cimetidine 400 mg twice daily. The impressions included hyperlipidemia. In October 1999, it was noted that the Veteran had been diagnosed as having hyperlipidemia and had a diet consultation and was "working on diet." Physical examination of the abdomen showed no masses, organomegaly, or tenderness. The Veteran was prescribed Zocor (simvastatin) 40 mg daily. The VA clinician noted that he had discussed this medication "at length" with the Veteran and "choices of treatment and we agreed to try" simvastatin. In February 2000, it was noted that the Veteran was on simvastatin 40 mg daily and his low-density lipoprotein (LDL) had dropped 70 points to 134. The impressions included "good response of cholesterol" to current medication. The Veteran was advised to continue working on his diet and to continue taking the present dose of simvastatin although this would be increased if his LDL was not below 130 "at the next visit." In October 2001, it was noted that the Veteran was taking simvastatin 40 mg daily. The VA clinician stated, " I have gone over the results[.] And they are not as good this time." The impressions included hyperlipidemia which "needs further treatment." The Veteran's prescription for simvastatin was increased to 80 mg. In June 2002, the Veteran complained of low back and left hip pain which had begun 3 weeks earlier. He had taken Vioxx initially without relief of his pain "and pain progressed from back to left hip and leg. [The Veteran] called at that time and stopped Zocor" without relief of his pain. After seeing a private physician, the Veteran was "given muscle relaxers and Celebrex with improvement in symptoms." The Veteran still noted back pain "when standing on [a] concrete floor." Walking caused the Veteran to experience back and left hip pain. Physical examination showed no masses, organomegaly, or tenderness in the abdomen and no pain on straight leg raising in either leg. The impressions included hyperlipidemia controlled on simvastatin, "but he is currently off," and chronic low back pain with recent exacerbation. The VA clinician stated, "I do not think that the SIMVASTATIN had anything to do [with] his back pain." The Veteran was advised to resume taking simvastatin. In September 2007, it was noted that the Veteran was on 40 mg daily of simvastatin (Zocor). He was advised to continue taking his medication. The Veteran was hospitalized at a VAMC on April 19, 2008, for complaints which included intermittent umbilical pain, nausea but no vomiting, a "burning sensation at which time his pain increases," and epigastric pain. It was noted that the Veteran had increased his simvastatin to 80 mg "simultaneously." A history of hyperlipidemia was noted. Physical examination showed a soft, non-tender, non-distended abdomen with normo-active bowel sounds and no rebound or guarding. The Veteran's creatine phosphokinase (CPK) level was 1082. The assessment was "statin adverse effect." The Veteran was advised to discontinue taking simvastatin. His CPK level was to be re-checked in 2 days. In an addendum to this hospitalization note also dated on April 19, 2008, the assessment was myositis. In a Physician Note dated on April 21, 2008, while the Veteran was hospitalized at a VAMC, it was noted that he felt "better today." He was given a medical release from work until April 28, 2008. It was noted that the Veteran's CPK was pending. The impression was elevated CPK with muscle soreness "presumed secondary to Zocor." The Veteran was advised to stay off Zocor "for now" and to eat a low cholesterol diet. He was discharged later that same day from the VAMC. The Veteran was seen in the Emergency Room (ER) at a VAMC on April 27, 2008. No complaints were noted. An allergy to Zocor was noted. Objective examination showed a soft abdomen with no rebound, tenderness, guarding, or hepatosplenomegaly, and no masses, and tight tender trapezius musculature on the left with referred pain down the left arm during palpation that worsened in side-bending and rotating to the left and improved rotating and side-bending to the right. The Veteran's CPK level was 446. X-rays of the cervical spine and left shoulder showed no arthritic changes. The assessment was left shoulder arm pain, rhabdomylolisis, and hyperlipoproteinemia. The Veteran was discharged home in stable condition. A private magnetic resonance imaging (MRI) scan of the Veteran's cervical spine taken in May 2008 showed severe bilateral neural foraminal narrowing at C5-6 and C6-7 and broad-based disc bulges at C5-6 and C6-7. In an Administrative Note dated on May 1, 2008, and included in the Veteran's VA outpatient treatment records, it was noted that he was "being treated for severe neck, chest, and shoulder pain of uncertain cause" and would need to be off from work until May 7, 2008. VA outpatient treatment records dated later in May 2008 show that he complained of severe cervical pain and was diagnosed as having cervical radiculopathy with severe and intractable pain. On private outpatient treatment in June 2008, the Veteran complained of "pain radiating from the neck down to the intrascapular region, as well as from the neck into the left shoulder down the lateral arm, forearm, and into the middle fingers. He reported this started on April 17th of this year." The Veteran described his pain "as a rather constant pain" and rated it as "8+ out of 10" on a pain scale (with 10/10 being the worst imaginable pain). Prolonged sitting and bending his head forward exacerbated the pain. Pain pills and ice seemed to improve the pain. An allergy to Zocor was noted. The Veteran reported that he had worked full-time in "aircraft parts" until April 18th. Physical examination showed tenderness in the cervical paraspinals, "primarily the left of the midline," spasm and tenderness in the rhomboid, levator scapula, and upper trapezius muscles, some decrease in the triceps on the left versus the right, and grossly symmetrical muscle strength. An MRI scan of the cervical spine was reviewed and showed broad-based disc bulges at C5-C7 with severe neuroforaminal narrowing bilaterally at C5-7. The assessment was cervical spondylosis, neuroforaminal narrowing bilaterally at C5-7, and broad-based disc bulges at C5-7. In statements on a May 2009 VA Form 21-4138, the Veteran contended that his additional disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder resulted "from the treating Physician not requesting a CPK lab test before the Increase of Statin Medication." The Veteran was hospitalized for several days in June and July 2009 at a VAMC for complaints of intractable neck and shoulder pain. He was admitted through the ER where he presented on June 29, 2009, with complaints of continued neck pain radiating down into his shoulder and arms. The Veteran stated that he had been seen on June 27, 2009, "for the same pain" which "returned once pain injection wore off." He also stated that wearing a soft collar "makes [his] pain worse." He rated his pain as 10/10 on a pain scale (or the worst imaginable pain). An allergy to Zocor was noted. A General Note dated on June 30, 2009, indicated that the Veteran had come to the VAMC "last night because of severe/unrelenting neck/shoulder pains." He reported being treated for the same pain 1 year earlier and "he got an injection in [his] neck and that it 'lasted a year.'" The Veteran stated that he continued to have posterior neck pain and pain across his shoulders. His pain was "relieved briefly with [intramuscular] Demerol." There was "[n]ot much improvement with Physical therapy or Flexeril." The impression was intractable pain/neck. He was admitted to the VAMC for pain management. On pain management consult on July 7, 2009, while hospitalized at a VAMC, it was noted that the Veteran complained of chronic intractable, recurrent midline as well as bilateral posterior neck pain which radiated in to both shoulders and had worsened over the previous week. A long-standing history of chronic intractable neck pain radiating in to both shoulders and epidural injections to treat this problem was noted. The Veteran reported "significant relief" from his pain symptoms due to his last epidural injection 1 year earlier. An allergy to Zocor was noted. An MRI taken in May 2008 was reviewed and showed bilateral neuroforaminal narrowing at C5-7 with disk bulging. Physical examination showed a limited cervical range of motion in all planes, 5/5 muscle strength of the bilateral upper extremities, equal deep tendon reflexes, and no motor or sensory deficits of the bilateral upper extremities. The assessment was bilateral cervical brachialgia and cervical degenerative disc disease. The Veteran elected to undergo a cervical epidural steroid injection. On VA outpatient treatment on July 20, 2009, he complained of continued neck pain "radiating up to the skull, but it is much better than before." The Veteran reported that, following his epidural steroid injection, he experienced "significant improvement" in his previously "intolerable, severe pain" in the neck. Physical examination showed a soft abdomen with no tenderness to palpation or organomegaly. The assessment included cervical radiculopathy which was "improved with epidural steroid injection, but has chronic pain," and hyperlipidemia with a note that the Veteran was "intolerant of statins" and reported that he was "following [a] low fat diet." In September 2009, the Veteran's complaints included continued low back pain and neck discomfort which was "not intense pain." Physical examination and the clinician's assessment were unchanged from July 20, 2009. A review of the Veteran's SSA records, date-stamped as received by the RO in September 2009, shows that he was awarded SSA disability benefits for back disabilities. On VA outpatient treatment in February 2010, the Veteran complained that his July 2009 epidural steroid injection in the cervical spine was "wearing off." The assessment included low back pain and neck pain. In a Note dated in March 2010 and included in the Veteran's VA outpatient treatment records, he reported to a VA clinician who had contacted him that his "cholesterol is always high" and he was unable to take Zocor "because it makes him sick." He also reported that he was unable to take any cholesterol medication. On VA spine examination later in March 2010, the Veteran complained of constant low back pain since an in-service injury in 1971. He stated that he had retired from American Airlines in 2008 "due to an adverse affect to an anti-lipid medication that he was taking." The diagnosis was degenerative disc disease of the lumbar spine with intermittent nerve root irritation to the left lower extremity. The Veteran received epidural steroid injections in his cervical spine from a private clinician in June and August 2010. In an opinion dated in March 2013 and date-stamped as received by the RO in April 2013, a VHA clinician opined that prescribing Zocor (simvastatin) to treat the Veteran's non-service-connected hyperlipidemia in October 1999 was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing outpatient treatment or an event not reasonably foreseeable. The rationale for this opinion was that the Veteran received "the standard of care" for treatment of his hyperlipidemia when he "was begun on a statin "as well as having a diet consultation." This clinician noted that the Veteran's total cholesterol had increased in October 1999 to 265 and his LDL cholesterol was 204 "which required initiation of statin therapy." The VHA clinician also opined in March 2013 that the Veteran's subsequent adverse reaction to Zocor (simvastatin) in April 2008 was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing outpatient treatment or an event not reasonably foreseeable. Citing medical literature, the rationale for this opinion was: Muscle injury is uncommon with statin therapy alone (no other lipid lowering agents used in combination with a statin), with a frequent of 2 to 11 percent for myalgias, 0.5 percent for myositis, and less than 0.1 percent for rhabdomyolysis. Muscle symptoms usually begin within weeks to months after starting stains. Myalgias, weakness, and serum CK concentrations usually return to normal over days to weeks after drug discontinuation. This clinician noted that the Veteran had an elevated CK level of 747 in December 1997 "associated with chest pain and a fall for which he was hospitalized." The day after his hospital admission, his CK level had fallen to 467 (with a normal level of 20-180 noted). "This was 2 years prior to starting statin therapy. Eight and one half years after starting statin therapy the Veteran was admitted to the hospital for abdominal pain and his CK level was elevated at 1082. His kidney function was normal. This is not rhabdomyolysis." The VHA clinician finally opined in March 2013 that the Veteran's adverse reaction to Zocor (simvastatin) in April 2008 did not lead him to develop additional disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder. The rationale for this opinion was that an adverse reaction to statins "involves muscle, not joints or discs." This clinician noted that the Veteran's complaint of back pain "predated the initiation of statin therapy in 1999." An MRI of the Veteran's neck taken in 2008 showed disc bulges and severe neuroforaminal damage. The Veteran's shoulder pain "is due to radiation from his neck. This is not from muscle damage or statin induced. Myalgias from statins usually return to normal over days to weeks after drug discontinuation and this drug was discontinued in 2008." This clinician also noted that a review of the medical literature also did not support "a claim of statins causing or aggravating stomach ulcer disease." Law and Regulations The Veteran contends that he is entitled to additional compensation under 38 U.S.C.A. § 1151 for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999. The Veteran specifically contends that VA lack of proper care/negligence caused him to experience disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder after being prescribed Zocor (simvastatin) to treat his non-service-connected hyperlipidemia in October 1999. He contends that, but for VA lack of proper care/negligence in prescribing Zocor (simvastatin) in October 1999, he would not have experienced additional disabilities in the cervical spine, lumbosacral spine, stomach, and left shoulder. The appropriate legal standard for claims for compensation under 38 U.S.C.A. § 1151 filed on and after October 1, 1997, as in this case, provides that 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 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. 38 U.S.C.A. § 1151 (West 2002). From the plain language of this statute, it is clear that, to establish entitlement to benefits under 38 U.S.C.A. § 1151, all three of the following factors must be shown: (1) disability/additional disability, (2) VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) 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 unforeseen event. Effective September 2, 2004, 38 C.F.R. § 3.361 relating to section 1151 claims was promulgated for claims filed on or after October 1, 1997, such as this claim. See 69 Fed. Reg. 46,426 (2004) (codified as amended at 38 C.F.R. § 3.361 (2010)). 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. 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. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 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. 38 C.F.R. § 3.361(c)(1). 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. Analysis 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 disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999 ("1151 claim"). The Veteran has contended that VA's negligence in prescribing Zocor (simvastatin) to treat his non-service-connected hyperlipidemia in October 1999 led him to develop disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder. The record evidence does not support the Veteran's assertions, however. It shows instead that the Veteran's complaints of and treatment for back and neck pain occurred before he started statin therapy (or Zocor) to treat his non-service-connected hyperlipidemia in October 1999 (as the VHA clinician found in March 2013). The March 2013 VHA clinician also determined that the Veteran's shoulder pain resulted from radiating pain from his neck which predated his being prescribed Zocor in October 1999 to treat his hyperlipidemia and was not due to muscle damage or induced by taking statins (or Zocor). The Board acknowledges the Veteran's assertions that he incurred additional disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder as a result of being prescribed Zocor (simvastatin) by his VA clinicians to treat his non-service-connected hyperlipidemia in October 1999. The Board finds that the evidence does not indicate that the Veteran's current cervical spine, lumbosacral spine, stomach, and left shoulder disabilities were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing outpatient treatment, or an event not reasonably foreseeable. The Board recognizes that the Veteran was prescribed Zocor (simvastatin) to treat his non-service-connected hyperlipidemia following VA outpatient treatment in October 1999. The Board also recognizes that the Veteran experienced an adverse reaction to Zocor beginning in April 2008 when this medication was discontinued by his VA treating clinicians. The Veteran has submitted several medical articles obtained from the Internet in support of his 1151 claims. These articles discuss simvastatin generally. The Board notes in this regard that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998). The medical articles submitted by the Veteran in this case were not accompanied by the opinion of any medical expert linking his disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999. Thus, the medical articles submitted by the Veteran are insufficient to establish the medical nexus opinion required for causation. See Sacks, 11 Vet. App. at 317 (citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Veteran's service representative has contended that the Veteran was prescribed Zocor (simvastatin) to treat his non-service-connected hyperlipidemia in October 1999 without his "informed consent." This argument is not supported by a review of the relevant evidence (in this case, the October 1999 VA outpatient treatment record). As noted above, following VA outpatient treatment in October 1999, the Veteran was prescribed Zocor (simvastatin) 40 mg daily. The VA clinician who prescribed Zocor for the Veteran's non-service-connected hyperlipidemia in October 1999 noted in this treatment record that he had discussed this medication "at length" with the Veteran and "choices of treatment and we agreed to try" simvastatin. There is no indication in this record or in the Veteran's subsequent VA and private outpatient treatment records that he had not been advised of the risks and benefits involved in taking Zocor or that he was taking this medication without his informed consent. More importantly, the March 2013 VHA clinician concluded that prescribing a statin (in case, Zocor) and having a dietary consultation to treat the Veteran's non-service-connected hyperlipidemia was the standard of care for this disease. And it is well-settled that merely showing that the Veteran has an additional disability does not establish a causal relationship between the medical care provided and any additional disability experienced. Thus, the Board finds that the service representative's argument concerning whether the Veteran gave his informed consent to being prescribed Zocor to treat his non-service-connected hyperlipidemia, thus rendering this care negligent and entitling him to additional compensation under 38 U.S.C.A. § 1151, is without merit. The record evidence shows that, following VA outpatient treatment in June 2002, a VA clinician opined that the Veteran's simvastatin had nothing to do with his complaint of back pain. A different VHA clinician also opined in March 2013 that the Veteran's subsequent adverse reaction to Zocor in April 2008 was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing outpatient treatment or an event not reasonably foreseeable. Nor did this adverse reaction lead the Veteran to develop additional disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder. This VHA clinician provided a comprehensive rationale for her etiological opinions concerning the contended causal relationship between the Veteran's being prescribed Zocor to treat his non-service-connected hyperlipidemia in October 1999 and additional disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder. The Veteran also has not identified or submitted any evidence, to include a medical nexus, which indicates that his disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder were the result of neglect, carelessness, lack of proper skill, error in judgment, or fault on behalf of VA. Absent such evidence, the Board finds that entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999, is not warranted. In reaching the above conclusions, the Board acknowledges Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), in which the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The Veteran is competent to report what he experienced since he was diagnosed as having hyperlipidemia in October 1999 and was prescribed Zocor by his VA treating clinicians to treat this disability. He also is competent to report what he experienced since he has been diagnosed as having disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder. The Board concludes that his lay statements are less than credible in light of the medical evidence showing no clinical relationship between his current disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder and being prescribed Zocor in October 1999 to treat his non-service-connected hyperlipidemia. The Board notes in this regard that the Veteran has not reported consistently when his thoracolumbar spine and stomach disabilities began. Although he contends that being prescribed Zocor in October 1999 led him to experienced additional disabilities of the thoracolumbar spine and stomach, the record evidence shows that he initially experienced gastroenteritis in August 1971, just days after his service separation and several decades before being prescribed Zocor to treat his non-service-connected hyperlipidemia. The evidence also shows that, when he was examined for spine disabilities in March 2010, he reported that his spine problems began during active service in 1971. He had asserted previously that his additional thoracolumbar spine disability was related to being prescribed Zocor in October 1999, several years after his service separation. The VHA clinician stated in her March 2013 opinion that the Veteran's elevated CK level was noted 2 years before he started statin therapy and he had been admitted for abdominal pain and an elevated CK level 81/2 years after beginning statin therapy. She also noted in March 2013 that the Veteran's back pain began 8 years prior to being prescribed Zocor in 1999. The Veteran has not shown that he has the expertise required to diagnose any of his current disabilities. Nor is he competent to offer an opinion regarding any causal relationship between his VA outpatient treatment in October 1999 and any current disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder. While the Veteran's contentions have been considered carefully, these contentions are outweighed by the record evidence showing no nexus between his VA outpatient treatment in October 1999 (when he was prescribed Zocor to treat his non-service-connected hyperlipidemia) and his current disabilities of the cervical spine, thoracolumbar spine, stomach, and left shoulder. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for disabilities of the cervical spine, lumbosacral spine, stomach, and left shoulder claimed as due to VA lack of proper care/negligence in providing outpatient treatment by prescribing Zocor (simvastatin) in October 1999 is denied. REMAND The Veteran also contends that his service-connected otitis externa is more disabling than currently evaluated. A review of the record evidence shows that the Veteran's most recent VA examination for otitis externa occurred in March 2009. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in March 2009, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected otitis externa. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Board also finds that, because adjudication of the Veteran's increased rating claim for otitis externa likely will impact adjudication of his TDIU claim, these claims are inextricably intertwined. Thus, adjudication of the Veteran's TDIU claim must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private outpatient treatment records. The Board notes in this regard that the most recent VA outpatient treatment records associated with the Veteran's claims file are dated only through April 2010. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for otitis externa in recent years. Advise the Veteran not to resubmit any records already provided to VA. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected otitis externa. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The examiner is asked to state whether the Veteran's service-connected otitis externa is manifested by swelling, dry and scaly or serous discharge, and itching, requiring frequent and prolonged treatment. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claims. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs