Citation Nr: 1335219 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 08-26 466 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot, claimed to have been caused during a February 2004 VA examination. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to July 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 RO decision. In March 2011, the Veteran presented testimony relevant to the issues on appeal before the undersigned Veterans Law Judge at a Board hearing held at the Portland RO. A transcript of the hearing is associated with the claims file and has been reviewed. In March 2012, the Board remanded the matter for a VA examination by a physician who had not previously examined or treated the Veteran, and a medical opinion. In March 2013, the Board again remanded the matter for further clarification of the medical opinion obtained. Such development has now been fully accomplished and the appeal is again before the Board for review. This appeal was processed using the Veterans Benefits Management System, a paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Disability of the right wrist, right hip, right knee, right ankle, and right foot was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA during a February 2004 VA examination. CONCLUSION OF LAW The criteria for VA compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot have not been met. 38 U.S.C.A. § 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information as to the 38 U.S.C.A. § 1151 claim in a May 2006 letter prior to the initial decision in the case. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). The Board finds that the VA examinations and the addendum reports obtained in this case are adequate. The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein; contain a description of the history of the disabilities at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Private medical records, Social Security records, VA treatment records and VA examination reports have been obtained and reviewed in support of the Veteran's claim. The Veteran's hearing testimony and his written contentions have been carefully reviewed. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. With respect to the aforementioned March 2011 Board 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 Veterans Law Judge who conducts a hearing must 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. Here, during the hearing, the Veterans Law Judge specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the claim. She asked specific questions, directed at identifying the Veteran's main contentions. She also specifically sought to identify any pertinent evidence not currently associated with the claims. Finally, 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 Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's electronic claims folder. 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 claimant 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Analysis Under 38 U.S.C.A. § 1151, VA 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 were service connected. 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 either: 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, and the proximate cause of the disability or death was either 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; or 2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The first step of developing a claim under 38 U.S.C.A. § 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure. To make this determination, we compare the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, etc. upon which the claim is based to the Veteran's condition after such care. Each involved body part or system is considered separately. 38 C.F.R. § 3.361(b). If it is determined that the Veteran has an additional disability resulting from VA care, the second step is to establish the case of the additional disability; in other words, to determine whether the VA actions actually caused the additional disability. To establish causation, the evidence must show that the VA care actually resulted in the additional disability. Merely showing that the Veteran received care and that he has an additional disability does not establish cause. Furthermore, medical care cannot cause the continuance or natural progress of a disease or injury for which the care 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). The proximate cause of disability is defined for these purposes as the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). However, causation alone is not sufficient to warrant compensation under 38 U.S.C.A. § 1151. Rather the third step in the analysis requires that the evidence must show either that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or that it was an event that was not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361(d). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. In a recent case, the Court emphasized that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a veteran with the same characteristics as the veteran in a given case. Schertz v. Shinseki, No. 11-2694 (Vet. App. Sep. 26, 2013). The Veteran contends that during a VA examination conducted in February 2004, the examiner injured his right wrist, right hip, right knee, right ankle, and right foot. In a July 2007 statement, he explained his theory of the case: "I believe the VA examiner was way too forceful during the examination. He aggravated the conditions that he was checking. Instead of checking my limitations as to how I was able to move the different limbs, he forced them to the point that he couldn't move them. I don't believe this is right. By using his method, he could push anyone to a full range of motion." During the March 2011 Board hearing, he explained it as follows: Well, this doctor up there in Vancouver, he was, he found out I didn't have any material, you know, for him to look at and he just got totally different, you know? He was just like a mad man. He had me laying on this table and the table was sitting against the wall and he had me holding on like that and he grabbed my right leg and he was pushing it up and twisting it back and forth and carrying on with it. And, you know, I said, "Gee, doc, that hurts." You know? And I could feel something wasn't feeling good and I was sitting there kind of dazed a little bit. And he said, "Okay. Sit up." So I got up and he says let me see your hands. So I put my hands out and he says, "Oh," he says, "I want to see your hands," and he grabbed this wrist like that and he twisted it around and I said, "Gee, that's kind of rough. That hurt." You know? And he says, "Well," he said, "I just wanted to see your hand." Well, it still hurts when I go and grab it or try to twist it to where I can feel it in here, or squeeze something or if I'm carrying something, if I touch it the wrong way, you know, I can still feel that. And my right hip, it's constantly hurting. And when I go up the stairs, I can feel my knees, of course, both knees, you know, are hurting, but. And then my foot on the front, if I'm going upstairs, especially if I'm carrying a bag of groceries, you know, I says, "Damn, that hurts." Review of the Veteran's voluminous claims file reveals that the February 2004 VA examination was scheduled for the purpose of evaluating claims for entitlement to service connection for a rib disability, a cervical spine disability, a left knee disability, and a left ankle disability; all of which were subsequently denied. The examination report reflects that although the examination was conducted for purposes of evaluating claims pertaining to the Veteran's left side, the examiner also examined the Veteran's right side, for purposes of comparison. Thus, the examiner measured the Veteran's range of left and right knee motion, both feet and both ankles, both hips, and both wrists. In the report the examiner noted that the Veteran tended to be a bit hyper-reactive during the examination, although the examiner provided no further explanation as to what he meant by this statement. With regard to the examination findings, the Veteran had full range of motion and full grip strength in both wrists. He had full strength and range of motion of both feet and ankles. He had equal flexion and extension in both knees as well. The medial and lateral collateral ligaments of both knee joints were clinically intact during the examination. His range of hip motion was described as full bilaterally. The examiner specified that there was no orthopedic diagnosis for the right knee, and did not render any further comment upon or diagnosis pertaining to the Veteran's right foot, ankle, hip, or his wrist. More than a year later, in April 2005, the Veteran filed what he termed, "a complaint against the examining doctor who treated me aggressively during the examination. He has made my right foot, my right knee, and my right ankle, and right hip hurt, also my right wrist hurts from him twisting on it." He also enclosed a letter from the Director of the VA Medical Center where the examination was conducted, apparently a response to a complaint the Veteran had made to that institution. This response is set forth in pertinent part: This is in reply to your letter expressing your concern that the provider hurt you during the Compensation & Pension exam on February 19, 2004. Upon receiving your letter, I contacted the Administrative Director of our Primary Care Division and directed her to review your concerns and notify me of her findings. I have received those findings and would like to share them with you. The Board of Veterans' Appeals in Washington, D.C., requested the exam conducted on February 19, 2004. They request very specific information in order to make a fair and accurate adjudication of your claim. An appeals claim requires that our provider conduct a more detailed and intensive physical examination to provide the details needed by the Board. It was not the provider's intent to cause your harm, pain, or suffering. If his report had not adequately described the degree of range of motion requested by the Appeals Board, they might not have sufficient information to resolve your case. Please accept our apologies for any distress, anxiety, or inconvenience you may have experienced. The provider in question has been made aware of your concerns and extends his regret for your discomfort during the exam. Recent medical records reflect orthopedic diagnoses of arthritis affecting the Veteran's neck, back, both knees, left ankle, and left foot. An earlier August 1996 diagnostic report reflects a diagnosis of bilateral carpal tunnel syndrome. The veteran does not carry current diagnoses from his medical care providers indicative of any disability involving his right foot and ankle, his right hip, and his right wrist. An X-ray report dated in May 2011 reflects a finding of enthesopathy in the ligaments and tendons of the right hip, foot, and ankle, however. A letter from the Veteran's primary care physician to the Veteran, notifying him of these findings reflects her assessment that, "The most prominent finding is enthesopathy or inflammation in the ligaments and tendons of the hip, foot, and ankle. This is usually from a form of arthritis called 'spondyloarthritis.' It is sometimes treated with different medications than 'regular' arthritis. If you want to see a specialist at the Portland VA to have this checked out further and see if any special treatment might be helpful, let me know." There is no indication, that the Veteran sought further specialist evaluation of this matter, however. In May 2012, the Veteran's medical records and claims file were reviewed by a VA physician who is a Board certified orthopedic surgeon. The physician noted that the examiner who had performed the February 2004 examination was a Board-certified orthopedist. The physician also noted that the examiner was not a personal friend. After reviewing the evidence of record, the physician concluded that the Veteran had not suffered any additional disability during the 2004 VA examination, and provided the following explanation: My conclusions regarding the submitted charges by [the Veteran] is that these charges are unfounded and that there is no likelihood at all of any causation or aggravation of any condition of [the Veteran] in the specific areas of [right] wrist, [right] knee, [right] ankle, right foot, and right hip. The Veteran in the hearing of March 24, 2011 made statements that the examining doctor changed after initially starting out as friendly and easy-going to a mean individual and that 'he grabbed my right leg and was pushing it up and twisting it back and forth and carrying on with it." He also states that the doctor grabbed his wrists and twisted them around. I have reviewed the [examination] report of that date and it indicates [the Veteran]complaining of pain in many areas and telling the doctor that certain maneuvers hurt. The report indicates McMurray maneuvers being done on his knees which were negative. Thus maneuver is done in exactly the manner as the Veteran described and is very indicated and appropriate for knee exams. If the maneuver were termed as positive then one would expect pain on the maneuver as well as a click. The test was negative here and therefore should not have produced any pain. There was no laxity, effusion, synovitis, or other than normal findings for the knee exams. The wrist examination as done was indicated and appropriately carried out to determine passive motion as well as any laxity of the wrist bones-these exam maneuvers were also normal. There is a comment in this [report] that the Veteran 'tends to be a bit hyper-reactive during the exam.' There are no civilian records in the C-file concerning any treatments for the right foot, right ankle, right knee, right hip, or right wrist either before or after the Feb. 2004 exam. There are no Portland VAMC progress notes concerning any treatment anywhere for the injury claimed or for any pre-existing injury. There are no orthopedic clinic visits before or after 2004. There are x-rays on Vista Imaging that note normal foot, normal ankle, normal hip and knee radiographs on date of 5/26/2011. One would assume that if some sort of injury had occurred due to the [examination] of 2004 that there would be x-ray findings by now and that there would be evidence of treatment somewhere. The truth is that the exam done was appropriate, indicated and necessary to make the diagnosis of any of these conditions. No abnormal exam findings of any of these claimed areas were present other than some mild complain[ts] about pain which is not an objective exam finding. Therefore, with normal exam objective findings, normal x-rays, and no follow up visits, the only conclusion is that there were no known conditions of Feb. 2004 in these joints which could have been aggravated or disability increased by the normal examination routines of the doctor that day. Because this opinion report did not contain any discussion of the May 2011 X-ray findings regarding enthesopathy in the ligaments and tendons of the right hip, foot, and ankle, the Board remanded this matter again for clarification as to the significance, if any, of the enthesopathy. Review of the resulting report shows that the physician again reviewed the Veteran's claims file and medical records, and also reviewed the original X-ray images. Based upon this review, he rendered the following opinion: Enthesopathy is commonly known as a traction spur. They are quite common and not due to acute trauma. They are often due to ageing or from low levels of chronic strain from physical activity. Although they were not specifically addressed in the x-ray reports in 2004, review of those images show that they were present on x-rays of the R knee and L ankle in 2004. They were not changed when compared to x-rays in 2011. The enthesopathies were clearly not caused by the examiner in 2004. Upon careful and liberal review of the evidence of record, the Board cannot identify any additional disability following the 2004 VA examination. It is not even clear that the Veteran has any disability at all involving his right wrist, other than some mild carpal tunnel syndrome identified in August 1996, well prior to the examination. That he has the enthesopathy affecting his right hip, right ankle, and right foot is established in the record. Also established in the record is right knee arthritis. None of these disabilities is shown to have their inception during the 2004 VA examination, however. As set forth above, the first step in developing a claim under 38 U.S.C.A. § 1151 is to determine whether the Veteran has an additional disability as a result of a VA procedure, in this case, a VA examination. The right carpal tunnel syndrome pre-existed the 2004 VA examination by many years. Likewise the right knee arthritis pre-existed the 2004 VA examination by many years. The enthesopathies of the right hip, right ankle, and right foot were not identified until 2011. None of these things could be reasonably said to have occurred during or proximate to the 2004 examination. The only indication of any disability related to the examination is the Veteran's own report of experiencing pain during the examination, and of continuing pain since then. The United States Court of Appeals for the Federal Circuit has held that pain alone, cannot be compensable in the absence of proof of a disease or injury to which the current pain can be connected by medical evidence. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (2001). In this regard, it is relevant to note that Social Security psychiatric evaluation reports, dated in the 1980s, well prior to the 2004 examination, reflect that the Veteran has a diagnosis of a psychogenic pain disorder, manifested by preoccupation with his bodily sensations and hypochondrial ideation. While this diagnosis may in part or wholly explain the Veteran's complaints, which are no doubt entirely sincere on his part, it further supports the conclusion that the Veteran does not have any current additional disability arising from the 2004 VA examination. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability at some point during the appeal period is required for a successful claim for VA benefits. McClain v. Nicholson, 21 Vet. App. 319 (2007). Even assuming, however, that some unspecified disability involving the pain the Veteran reports during the examination and afterward, exists, the claim must still be denied because the second element of causation is not met. All the medical evidence of record is against the claim that any additional disability resulted from the VA examination. The May 2012 physician reviewer explained that the Veteran's report during the hearing of grabbing and twisting his right arm and right leg represented normal and appropriate clinical orthopedic testing of the joints at issue. He also explained that because the 2004 examiner was carefully looking for signs of pain during the examination and found none, it is less likely the Veteran was actually experiencing pain at these points during the examination. As a layperson with no demonstrated medical expertise, the Veteran is not competent to render a complex medical opinion as to the cause of his current vague and unsubstantiated complaints. Although there is no categorical requirement of " 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,' " more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury." Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). "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, (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." Id. As such, to the extent that he believes that his current complaints were the result of the examiner's actions during the 2004 examination, he lacks the medical expertise to competently provide such evidence of record. Nevertheless, an expert medical opinion was sought from a physician with equivalent credentials to those of the 2004 VA examiner. This opinion and the following clarification are thorough and directly address the question at hand. Moreover, even if cause were shown, and as discussed above it is not; the evidence does not support in any way the proposition that any current disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing a compensation examination to the Veteran. (Element three). In summary, none of the elements which form a successful claim for benefits under 38 U.S.C.A. § 1151 are shown here. The preponderance of the evidence is therefore against the Veteran's claim and VA compensation benefits for disability of the right wrist, right hip, right knee, right ankle, and right foot are denied. ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for disability of the right wrist, right hip, right knee, right ankle, and right foot are denied. ____________________________________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs