Citation Nr: 1336992 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-36 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to 38 U.S.C.A. § 1151 compensation for partial left femoral nerve injury due to surgery at a VA hospital in April 2008. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for mild patellofemoral syndrome, left knee (claimed as left knee condition), secondary to partial left femoral nerve injury. 4. Entitlement to service connection for mild spondylosis of the lumbar spine (claimed as back condition), secondary to partial left femoral nerve injury. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: James M. McElfresh, II. ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1969 until July 1971, including service in Vietnam from October 1970 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issue in March and September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The March 2009 rating decision denied, in pertinent part, service connection for tinnitus. The September 2009 rating decision denied the issues of service connection for left knee, low back, and PTSD, and a claim for Section 1151 compensation for left temporal nerve injury. Although the Veteran filed his mental health claim as one for service connection for PTSD, as there is evidence in this case of multiple psychiatric disorders, the Board has restyled the issue as reflected on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (providing that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). The issues of service connection for a left knee disorder, a low back disorder, and an acquired psychiatric disorder, including PTSD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO for further action. FINDINGS OF FACT 1. The additional disability of partial left femoral nerve injury (claimed as traumatized nerve in the left leg due to surgery) incurred from an April 2008 surgery at a VA facility was not an event that was reasonably foreseeable in this Veteran's case. 2. Tinnitus was not complained of or diagnosed during service; and the Veteran's tinnitus, first acknowledged approximately 40 years after service, is unrelated to noise exposure in service. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for partial left femoral nerve injury (claimed as traumatized nerve in the left leg due to surgery) are met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice and timing requirements were accomplished in letters dated in June and July of 2008; and May of 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained. The Veteran's service treatment records and VA treatment records have been obtained. Private medical records are also in the claims file. In addition, the Veteran was accorded multiple VA examinations, and the reports of these examinations are adequate for adjudicative purposes as the examiners reviewed the claims file, considered the Veteran's medical history, examined the Veteran, and after considering the aforementioned, provided rationale for the opinions reached. He was also afforded an opportunity to give testimony before the Board; which he declined. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. Section 1151 Compensation Pursuant to 38 U.S.C.A. § 1151, a veteran may be compensated for a "qualifying additional disability" that was not the result of the Veteran's willful misconduct and that is actually and proximately caused by VA hospital care, medical or surgical treatment, or examination furnished by VA. 38 U.S.C.A. § 1151(a); 38 C.F.R § 3.361. "To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the....medical or surgical treatment...upon which the claim is based to the Veteran's condition after such...treatment." 38 C.F.R § 3.361(b). A "qualifying additional disability" is actually caused by VA care, treatment, or examination when the VA care, treatment or examination "resulted" in the additional disability. 38 C.F.R § 3.361(c)(1). When an additional disability is caused by a Veteran's failure to properly follow medical instructions, such a disability will not be considered to have been caused by VA hospital care or medical treatment. 38 C.F.R § 3.361(c)(3). A "qualifying additional disability" is proximately caused by VA medical care, treatment, or examination when the disability results either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or from "an event" that is "not reasonably foreseeable." 38 U.S.C. § 1151(a); 38 C.F.R § 3.361(d)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran's informed consent. 38 C.F.R § 3.361(d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the disability. The event does not have to be "completely unforeseeable or unimaginable," but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R § 3.361(d)(1). The Veteran contends in his June 2009 claim that he sustained a traumatized nerve in the left leg as a consequence of aortobifemoral bypass graft surgery on April 15, 2008, at the VA Medical Center (MC) in Memphis, Tennessee. The Board finds that the most probative evidence of record shows that the claimed disability did in fact manifest as a result of the surgery. According to a January 2009 statement from the vascular surgeon that attended the 2008 surgery, a preoperative CT scan showed normal vasculature below the level of the femorals; however, the Veteran has had neuropathic complaints since the surgery. Neurological examination found left femoral nerve injury with atrophy of vastus medialis muscle. Based on the medical evidence of record the Board finds that the Veteran did incur the additional disability of partial left femoral nerve injury secondary to the aortobifemoral bypass surgery done by VA in April 2008. Having established that the Veteran did incur the additional disability of left femoral nerve injury as a result of surgical treatment by VA, the Board must now determine whether that disability is a result of fault on VA's part. To establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, it must be shown that the disability resulted either from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment, or without the Veteran's informed consent; or that the disability was "not reasonably foreseeable." The evidence clearly shows that VA conducted the aortobifemoral bypass graft surgery on April 15, 2008, with the Veteran's informed consent. The preponderance of the evidence also indicates that the Veteran's additional left femoral nerve injury disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. According to a VHA vascular surgery expert, there were no technical difficulties encountered during the exposure, dissection, and preparation of the femoral arteries, and no negligence, carelessness, or lack of skills on the part of the surgeon or surgical team that performed the Veteran's aortobifemoral bypass graft operation. However, according to this expert, the ensuing left femoral nerve injury was not reasonably foreseeable in this veteran's case. He advised that he had reviewed the literature on vascular surgery with particular attention to the review of vascular complications, and found no report "in large series" of permanent femoral nerve injury following an elective aortobifemoral bypass graft procedure. He explained as follows: This type of procedure can produce a few transient episodes of numbness in the distribution of the femoral nerve, and the vast majority of those cases are reported as self-limited, with no permanent injuries to the femoral nerve. . . . Trauma to the femoral nerve that may occur from dissection, retraction, and exposure, is self-limited and will not produce permanent paralysis. . . . the reported cases of injury to peripheral nerves, such as the femoral nerve, have occurred in operations where there was extensive scarring from previous operations. In this instance, the loss of the anatomical land marks results in an increased risk of nerve injury. This is not the case in this particular operation for this patient. In an addendum opinion dated in October 2013 the VHA expert reiterated that "this was not an event that was reasonably foreseeable." The Board finds this opinion, which was provided by a medical expert after careful review of the medical evidence of record, which included a detailed discussion of the facts and rationale in support of the conclusions reached, and which is not contravened by any medical evidence of record, to be persuasive. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). See also Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for partial left femoral nerve injury (claimed as traumatized nerve in the left leg due to surgery) is therefore established. III. Service Connection - Tinnitus In July 1971, the Veteran separated from active duty service. In June 2009, he filed his claim for service connection/compensation. Military records confirm that he is a Vietnam combat veteran. The issue of service connection for tinnitus, though not expressly claimed by the Veteran, was raised by the medical evidence of record (during an October 2008 VA audiology examination), and so was adjudicated. In a rating decision dated in March 2009 the RO denied service connection for tinnitus, which the Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Disorders diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). In the case of a veteran who engaged in combat with the enemy in active service, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. 38 U.S.C.A. § 1154(b). Preliminarily, the Board first notes that the Veteran does not allege, and there is no otherwise evidence, of tinnitus during a period of combat, so the provisions of 38 U.S.C.A. § 1154(b) are not applicable with regard to this claim. In fact, there is no evidence of tinnitus prior to the Veteran's June 2009 examination. Indeed, the Veteran denied tinnitus during a January 2008 audiology consult (which was prior to his claim for service connection). He did, however, admit to tinnitus during his June 2009 VA examination. While the examiner did not dispute the Veteran's claim of tinnitus, he concluded that the Veteran's tinnitus was not related to service because the Veteran had denied a history of tinnitus in 2008 and because there was no lay evidence of tinnitus before then. The Board finds this opinion, which is based on careful review of the medical evidence of record and consideration of the Veteran's subjective complaints and the results of audiology testing; and which included a detailed rationale for the examiner's opinion and is uncontroverted by any other medical evidence of record; to be highly probative evidence against the Veteran's claim. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007); Owens, 7 Vet. App. 429 (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). Although the Veteran now says that he has had ringing in his ears for a long time, the Board finds compelling the absence of any contemporaneously made complaints of tinnitus before the 2009 VA examination. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (providing that there is a plausible basis for a finding that a lack of contemporaneous evidence has greater probative value than a remote recollection of events). Indeed, and as stated before, the Veteran did not mention tinnitus in his 2008 claim for service connection, and he specifically denied any tinnitus during a January 2008 audiology consult. In light of the Veteran's disinterested statements, in 2008, that he had no tinnitus; and in the absence of any mention of tinnitus until nearly 40 years after service, the Board does not find the Veteran's present assertion of tinnitus prior to the 2009 examination to be credible. See Goodsell v. Brown, 5 Vet. App. 36, 42 (1993) (The Board must analyze the credibility and weight of all the evidence to determine probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any [favorable evidence]); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (The Board has the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence); and Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, that is, because of possible bias or conflicting statements). See also Caluza, 7 Vet. App. 498, 511 (the credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). In so finding, the Board recognizes that the Veteran is competent to describe his symptoms (see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)); however, considering the lapse in time between the Veteran's in-service noise exposure and the total absence of evidence of tinnitus for nearly 40 years after service, the Board finds that an opinion as to an association between this Veteran's tinnitus and service is rationally beyond the Veteran's lay capacity and his statements are not competent evidence on the question of causation and are of no probative weight. See Charles v. Principi, 16 Vet. App. 370 (2002) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). And no factual foundation has been established to show that the Veteran is qualified through knowledge, education, training, or experience to offer a medical diagnosis or opinion. Where, as here, the determinative question involves a nexus or causation, and a lay assertion on medical causation is not competent evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. Again, the record does not contain competent medical evidence which suggests that the Veteran's tinnitus is related to service. On the contrary, a VA examiner maintains that the disorder is not related to service, and the record contains no medical evidence to the contrary. The weight of the evidence is consequently against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990) (noting that when all the evidence is assembled, VA is responsible for determining whether . . . a preponderance of the evidence is against a claim, in which case, the claim is denied.). Service connection for tinnitus must therefore be denied, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b); see also Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for partial left femoral nerve injury (claimed as traumatized nerve in the left leg due to surgery) is granted. Entitlement to service connection for tinnitus is denied. REMAND As regards the issues of service connection for a left knee and a lumbar spine disorder, in his 2008 claim for service connection the Veteran stated that he has had knee pain and back pain since the April 2008 aortobifemoral bypass graft surgery; and VA medical records do indeed chronicle complaints of low back and knee pain since the surgery. See, e.g., VA treatment records dated in May and June, 2008 (relating complaints of pain in low back and left leg/knee since April 2008 vascular surgery, diagnosed as "lumbago: long surgery"). Having just granted entitlement to Section 1151 compensation for partial left femoral nerve injury, an opinion is needed as to whether a current left knee disorder or a current low back disorder is related to the nerve injury disability. 38 C.F.R. § 3.159(c)(4). Additionally, and with regard to the claim for service connection for an acquired psychiatric disorder, on VA PTSD examination in June 2009 the examiner noted that the Veteran had some symptoms of PTSD, but said the Veteran did not "fully meet the criteria" for the diagnosis. Unfortunately, the examiner did not elaborate further. Since then, VA law regarding service connection for PTSD have changed; and subsequent VA medical records advise: rule out PTSD. See, e.g., VA mental health treatment record dated April 2012. In light of 38 C.F.R. § 3.304(f)(3), this Vietnam combat Veteran should be accorded a new examination. Accordingly, the case is REMANDED for the following action: 1. Associate, with the claims file, all of the Veteran's VA medical records (including virtual/electronic records) dating from April 2012, from the Memphis VAMC. Any additional pertinent private treatment records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran. If no records are found, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 2. After the above has been completed, schedule the Veteran for a VA examination regarding the claims of service connection for a left knee and a low back disorder. The claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. Following a review of the claims file, to include service and post-service medical records, the examiner is requested to state, for each diagnosed left knee and low back disorder, whether it is at least as likely as not that the disorder: (a) was directly caused by the Veteran's service-connected left femoral nerve injury; and, if not, (b) whether the disorder has increased in severity beyond its natural progression as a result of the left femoral nerve injury. The phrase "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions should be provided. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, the examiner should clearly and specifically so state in the examination report, and explain why that is so. 3. Also schedule this combat Veteran for a VA psychiatric examination. The claims folder should be provide to, and reviewed by the examiner who is asked to determine whether the Veteran has a psychiatric disability, including PTSD that may be considered to have had its onset in service. If PTSD is not diagnosed, the specific criteria not met for that diagnosis should be identified. A complete rationale for all opinions must be provided. 4. After completing the above development, and any other development deemed necessary, readjudicate these appeals. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs