Citation Nr: 1341641	
Decision Date: 12/17/13    Archive Date: 12/31/13

DOCKET NO.  06-03 806A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a neck disability due to surgery performed at a VA medical facility.

2.  Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a mental disability, to include organic brain injury and psychiatric disability, due to surgery performed at a VA medical facility.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESSES AT HEARING ON APPEAL

Appellant, Appellant's Son, and L.F.


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The Veteran had active service from August 1973 to March 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA).  The case was previously before the Board in February 2008 when it was remanded for additional development of the evidence.  The case was again remanded by the Board in March 2010 to complete essentially the same development, which had been not been completed due to confusion regarding the Veteran's correct home address at that time.  The case was again remanded by the Board in December 2010 to complete necessary and previously directed development which was not adequately completed by the RO in processing the prior remand.  The case was most recently remanded in March 2012, again to complete necessary and previously directed development.

The Veteran testified at a Board hearing in January 2008.  A transcript of that hearing is of record.


FINDINGS OF FACT

1.  The Veteran did not suffer any new or additional neck disability as a result of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA, or as a result of an event that was not reasonably foreseeable.

2.  The Veteran did not suffer any new or additional mental disability as a result of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA, or as a result of an event that was not reasonably foreseeable.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a neck disability have not been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013).

2.  The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a mental disability have not been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Duty to Notify

Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).

The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

Most recently, a letter dated March 2008 informed the appellant of the information and evidence necessary to warrant entitlement to the benefits sought on appeal.  The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  The March 2008 letter also provided notice concerning the evaluation and the effective date that could be assigned should service connection be granted, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The March 2008 letter was sent prior to the most recent RO-level readjudication of the case, as evidenced by the May 2013 supplemental statement of the case.  The VCAA notice was therefore effectively timely.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes the Veteran's service treatment records and all pertinent identified post-service medical records, including VA and private medical records.  VA has afforded the Veteran a number of VA examinations with medical opinions in connection with this appeal; most recently, in accordance with the Board's remand directives seeking to ensure the development of adequate medical opinions, VA examination reports and medical opinions dated in May 2012 and April 2013 were prepared and added to the claims file.

The Board finds that the VA examination reports, now featuring the medical opinions presented in the May 2012 and April 2013 reports, now adequately address the critical questions at issue; the VA examination reports present sufficient discussion of the pertinent history, clinical findings, medical principles, and expert determinations informed by review of the claims file such that they present adequate and probative evidence in this case.

All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.

The Board finds that the actions directed by the Board's prior remands have been adequately completed in this case.  In particular, the Board again notes that the May 2012 and April 2013 VA examination reports now present the sought probative evidence addressing the pertinent medical questions at issue in this case.  The medical opinions of record now adequately address all of the essential questions raised by the issues on appeal, in accordance with the prior Board remands.  The April 2013 VA medical opinion also provides the completion of the January 2011 VA examination report's medical opinion, which had previously appeared to be incomplete.  The claims file (including Virtual VA) now contains the complete set of the records associated with the Veteran's September 1997 VA neck surgery, as all records associated with the search (including documented electronic search) for the pertinent date range have been included and made available for review.

The Board finds that the actions directed by the prior remands have been completed in substantial compliance with the terms and purposes of those directives.

The Board acknowledges that the Veteran's representative, in a September 2013 written brief, contends that even the latest obtained VA medical opinions remain inadequate and that further development is necessary.  However, the Board finds that there is no indication of record that the author of the May 2013 VA examination report is not competent to provide the medical opinions offered, and the Board finds that a detailed discussion of rationale is now of record for each pertinent medical opinion upon which appellate review must rely.  The Board finds that the record now contains medical opinions of probative value adequately addressing the issues on appeal such that appellate review may finally be completed without additional delay.  The Board has considered the representative's expression of concern regarding the fact that the specialty of the May 2013 VA examiner does not match that mentioned in the Board's remand directive; the Board finds that the adequate and competent May 2013 VA examination report substantially meets the needs of appellate review, serves the purposes the Board's prior remand intended, and reflects substantial compliance with the Board's directives.

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the claimant.


Analysis

The Veteran seeks compensation pursuant to 38 U.S.C.A. § 1151 for multiple disabilities allegedly caused as the result of a surgical procedure at a VA medical facility in September 1997.  Specifically, the Veteran contends that anesthesia preparation for neck surgery resulted in the Veteran's heart stopping and caused both organic and psychological damage.  Additionally, the Veteran claims that the completion of the bone graft neck surgery itself was done improperly and resulted in significant additional neck disability.

Formerly, 38 U.S.C.A. § 1151 provided that "[w]here any Veteran suffers an injury or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation . . . awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such Veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such Veteran, disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation or death were service-connected."  38 U.S.C.A. § 1151 (West 1991).

Earlier interpretations of the pertinent statute and regulations required evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to 38 U.S.C.A. § 1151 benefits.  See, e.g., 38 C.F.R. § 3.358(c)(3) (1994).  Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court), in Gardner v. Derwinski, 1 Vet. App. 584 (1991).  The Gardner decision was affirmed by both the United States Court of Appeals for the Federal Circuit, see Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and the United States Supreme Court, see Brown v. Gardner, 513 U.S. 115 (1994).  The United States Supreme Court, in affirming the Court's decision, held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA.  See Brown, supra.  38 C.F.R. § 3.358 was amended in 1995 to conform to the Supreme Court decision.  The amendment was effective November 25, 1991, the date the Court issued the Gardner decision.  60 Fed. Reg. 14,222 (March 16, 1995).  Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude benefits in the absence of evidence of VA carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an unforeseen event.  Pub. L. No. 104- 204, § 422(a), 110 Stat. 2926 (Sept. 26, 1996), codified at 38 U.S.C.A. § 1151 (West 2002).

The revised provisions of 38 C.F.R. § 3.358 state that where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, compensation will be payable for such additional disability.  Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the Veteran.  38 C.F.R. § 3.358(c)(3).  "Necessary consequences" are those that are certain or intended to result from the VA hospitalization or medical or surgical treatment.  Id.

The Board received the current claim in March 2001.  As noted above, the amended version of 38 U.S.C.A. § 1151 has added the requirement that there must be evidence showing that the additional disability for which benefits are sought was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable.

Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997, were amended.  See 69 Fed. Reg. 46,426 (Aug. 3, 2004) [adding 38 C.F.R. § 3.361].  Those regulations largely implemented the provisions of 38 U.S.C.A. § 1151.

In pertinent part, 38 C.F.R. § 3.361 provides as follows:

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.  38 C.F.R. § 3.361(c)(1).

Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress.  38 C.F.R. § 3.361(c)(2).

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 (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.  Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent.  38 C.F.R. § 3.361(d)(1).

Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is 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.  38 C.F.R. § 3.361(d)(2).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).

The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing; the Board may accept one medical opinion and reject others.  Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Board may not make its own independent medical determinations; the Board must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another.  Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991).  Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source.

VA medical records, including several medical reports from 1997 leading up to the September 1997 procedure (including as documented in Virtual VA), show that the Veteran was "a carpet layer and had a 1700 lb roll of carpet fall on him last July [1996].  He immediately suffered severe pain in mid-neck, right shoulder, and most intense into right tricep and dense numbness in right first three fingers, and tingling sensation in 5th digit and thumb."  The Veteran, as documented in the September 1997 reports, reported "progression of numbness in right arm and right trunk and right leg."  The Veteran was assessed to have "HNP C4/5," or herniated nucleus pulposus.  Surgical treatment of the problem was scheduled at a VA medical facility in September 1997, and multiple VA medical records show that the Veteran was informed of the risks and benefits associated with the selected treatment.  VA medical reports in the 1997 consultations prior to the surgery (including in March 1997, documented in Virtual VA) show that the Veteran was informed of a number of risks including nerve damage, myocardial infarction, and death; the VA reports document that, so informed, "Patient wishes to proceed with operation."

September 1997 VA medical records associated with the C4-5 repair and fusion procedure in question feature an anesthesia progress note documenting the "flat-line" episode involved in this appeal.  The anesthesia report shows that laryngoscopy revealed "closed cords anteriorly" and a face mask was replaced with different medications.  "About 30 seconds after the third dose of succinylcholine, a flat-line EKG was observed in EKG leads II and V, and the pulse-ox tracing was also flat-line.  Carotid pulse was absent."  Next, "3 chest compressions were given while continuing with 100% O2 with the isoflurane discontinued but EKG and pulse-os tracings remained flat-line."  Then, "~10 additional chest compressions were provided and the patient returned to a sinus rhythm, pulse -ox tracing with sp02 ~98%, with BP ~ 150/100."  Afterwards, "[i]n discussion with the neurosurgery service (Dr. Matz), it was decided to cancel this elective case and the patient was ventilated with 100% O2 via mask until spontaneous respirations returned."  The report documents that "[w]hen he awakened, [the Veteran's] major complaint was having a foley catheter and complaining about the need to 'go to the bathroom.'"  Finally, "[a] right radial arterial line was started prior to emergence and the patient was transferred to the ICU, under monitored conditions with 100% O2 via mask."

Other medical records associated with the September 1997 VA treatment present additional medical indications and information.  The preoperative diagnosis was a cervical herniated nucleus pulposus ["C4-5 HNP"] with stenosis, with an identical post-operative diagnosis following the flat-line episode because "procedure aborted due to momentary asystole."  The reports show that the Veteran was subsequently seen by cardiology.

The September 1997 cardiology report characterizes the asystole "flat-line" episode as follows: "A first attempt at intubation was preformed [sic] and the cords were noted to be closed and there was mild bronchospasm.  After ventilation [and additional / changed medications] .... [t]he patient went into an episode of asystole that lasted 15 seconds.  After chest compressions the patient returned to normal sinus rhythum [sic]."  The report notes that the "surgery was postponed" and that the patient went to "ICU" and "complains of chills and diaphoresis."  After examining and evaluating the Veteran, the cardiology physicians assessed that "[t]he episode of asystole was most likely a vagal response to manipulation of the airway during attempted intubation."  The noted "plan" was that, prior to future surgery, the Veteran "should be premedicated with a dose of atropine to help prevent a vagal response" and consider a "temporary pacemaker."  The final opinion presented was: "his asystolic episode was precipitated by difficult attempt at intubation with eliciting potent vagal reflex.  I would premedicate as suggested ....  I don't think he will need prophylactic placement of a pacemaker."

VA medical records from the following days show "no neuro changes," "alert," "will plan to reschedule surgery," "Pt without complaints," "[s]tates feels fine and feels the same as prior to recent events."  The Veteran reported, regarding his history of a single prior surgery, "after induction for knee surgery, had episode of cardiac arrest.  Resuscitated and surgery was continued....  Team ... felt secondary to medication, as per pt."

On the third day following the initial aborted attempt at surgery, the Veteran underwent surgical treatment for his cervical stenosis with myelopathy due to C4-5 HNP, and the neurosurgeon's report notes: "findings large R paracentral disc and large central C4, mod central C5 osteophytes dispo to recovery in satisfactory condition."  Subsequent records show that the Veteran had post-operative complaints of pain and tenderness at the neck surgical site, in the right shoulder, and at the bone donor site around the hip.  In the following days of recovery, reports include notations of stable condition, administration of pain medication, "wounds healing well," "good graft position at C4-5," and a neurosurgeon's assessment of "[r]ight hemianalgesia (does not make anatomic sense)."  The Veteran was discharged from hospitalization with a cervical collar and prescriptions on September 9th, 1997; this was four days after the completed surgery and seven days after the original aborted attempt.

A November 1999 VA examination report (prepared for purposes of evaluating a pension claim) documents the Veteran's account of pertinent history as of that time.  The Veteran reported that "in 1993, he was struck by a 2 by 4 over the neck region" and that following this "[h]e continued to have some difficulty and pain with motion of his neck."  "Later in 1993 or early 1994, he was seen at the VA Medical Center in Virginia where he had further work-up because of increasing problems with tingling and numbness into both arms and increasing pain in the neck with all motions of the neck.  He had an MRI taken at this time, which apparently revealed some abnormalities."  "The patient thinks there was evidence of old fractures in the cervical spine.  In any event, the patient was initially treated with traction and he was hospitalized approximately one week."  The Veteran described that "[h]e had no improvement with his treatment, and he continued to have increasing pain with all motions of his neck and persistent tingling and numbness in both arms."  Later, the Veteran described undergoing "a fusion procedure," and now complained of "increasing problems with severe pain in the neck with spasms of acute pain with all motions of the neck and persistent numbness and tingling into both arms and occasionally some tingling sensation into both legs."  The VA examiner diagnosed "Fracture cervical spine, p/o fusion procedure and current discogenic disease with peripheral neuropathy."  The VA examiner commented that the Veteran had "no obvious gross psychiatric or personality disorders; however, he does have some obvious anxiety tension problems associated with his complaints referable to his neck."

In the Veteran's claim received in March 2001, he stated that the September 1997 VA surgery "resulted in a malpractice that has left me permanently and totally disabled.  Because of the cervical stenosis with myelopathy (or better said botch[ed] surgery) this mishap has caused me anguish in life."  Among the impairments cited by the Veteran were speech impairment and posttraumatic stress from being told he was "clinically dead," anxiety, depression, and pain.

This case has involved substantial efforts to develop evidence adequately addressing the complex medical issues raised in this appeal; these efforts have progressed over the course of several Board remands.  A January 2005 VA contract examination report indicates that the examiner had access to the claims folder for review and found the Veteran's own account to be reliable.  The January 2005 report shows that the Veteran presented wearing a "soft C collar with a supporting anterior and posterior thoracic brace."  The report reflects that a physical examination was "very limited" because, as the examiner explained, "Given the nature of his injury I am reluctant to remove his collar."  However, the report does not clearly explain the "nature of his injury" or refer to any objective clinical features of a disability.  This report offers only one item in its diagnosis section: "Status post fusion of C-4, C-5."  The report shows that neurological examination revealed no gross deficiencies.  Yet, the report discusses significant pain and refers to "the above disability" without clearly identifying the clinical features of the contemplated pathology.  Significantly, the report appears to attribute some amount of functional deficit, referred to as "a DeLuca Factor" in the report's summary section, associated with "the surgeries performed and the level of pain experienced."

The Board's February 2008 remand discussed that it is unclear to what extent the January 2005 report reflects that any specific disability of the neck was actually clinically diagnosed by that examiner.  However, the Board noted that the January 2005 report does repeatedly refer to a significant neck disability associated with the Veteran's cervical collar, and functional loss is discussed in connection with the Veteran's surgery.  The Board noted that the record reflects that the Veteran did not wear a cervical collar prior to his 1997 surgery, but was provided with a cervical collar immediately following surgery, according to the appropriate September 1997 medical records.  The record further reflects that the Veteran has worn the cervical collar regularly since the September 1997 surgery.  Thus, the Board found that there was suggestion of some disability of the neck and some suggestion that it was associated with the surgery; but there were no clear clinical findings or medical statements resolving the medical questions essential to this appeal.

The Board's February 2008 remand also discussed that an October 2005 VA neurological examination report further confused review of the record; it shows diagnoses of "postlaminectomy and fusion of cervical spine status," "reduced reflexes peripherally suggesting condition of polyneuropathy, idiopathic in origin," and "Unusual sensory loss in proximal parts of all four extremities, difficult to explain in neurological terms."  In an addendum authored following review of the claims folder, the same examiner noted that following the surgery, "subsequent MRI of the cervical spine showed intact and fused cervical spine, confirming that surgery was successful and not failed."  This neurologist's report does not clearly address the orthopedic specialist's comments from January 2005 which suggested significant orthopedic disability in the cervical spine, perhaps associated with the surgery.

The Board's February 2008 remand found that the evidence of record (at that time) concerning the Veteran's neck was in conflict and presented unresolved ambiguity.  One examination report suggested that the Veteran has a significant orthopedic neck disability and may not safely remove his cervical collar, which was provided to him immediately following his September 1997 neck surgery.  A neurological examination report suggested that the Veteran's September 1997 neck surgery was successful and did not cause any new disability, but did not address the Veteran's apparent need to wear a cervical collar nor did it clearly address the suggestions of the orthopedic report.

As also noted in the Board's February 2008 remand, there is some suggestion in the record (including as discussed in November 2005 VA examination reports including an addendum to the October 2005 VA psychiatric examiner's report) that the Veteran injured his neck in a June 1998 car accident.  Additionally, there is medical evidence indicating an "abnormal" cervical spine examination in April 1998 and cervical spine deformity in July 1998; an October 2001 private imaging report shows that the Veteran's cervical fusion was noted to be "solid."  The Board is not competent to resolve the conflicts of medical evidence and the unresolved medical questions raised by the evidence of record.  Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In light of the conflicting indications, the Board sought new adequate VA orthopedic examination and medical opinion addressing the Veteran's neck and pertinent medical history to clearly identify the nature and etiology of any current neck disabilities.

As discussed in a subsequent December 2010 Board remand, a resulting April 2010 VA medical examination report reflects misinterpretation of key elements of the Board's directives, and fails to adequately address the questions posed.  Aside from a discussion of cardiac health which neither supports the Veteran's claim nor presents significant pertinent evidence concerning the contentions at issue, the April 2010 VA examination report's attempt to address the Board's question concerning the medical purpose of the cervical collar was addressed only with the statement: "He wears a neck collar reportedly for pain -- I cannot comment on the medical necessety [sic] for this."  Although the April 2010 VA examination report addresses, in general terms, that he does not believe that any neurological deficits resulted from the September 1997 surgery, it is not clear whether this contemplates potential cognitive deficits from any potential organic brain injury in light of the conflicting indications of record as to the nature and etiology of such deficits.  In December 2010, the Board remanded the issue to adequately complete the necessary development.

With regard to the mental disability issue, the Board's February 2008 remand found that the evidence then of record presented substantially conflicting indications.  The Veteran's contentions regarding mental disability have referenced at least two pertinent pathologies which may be associated with mental disability due to the September 1997 surgery.  First, the Veteran has claimed that he suffered an organic brain injury resulting in cognitive deficits due to "flatlining" during the first attempt at the surgical procedure.  Additionally, the Veteran claims that his flat-lining experience was a near-death traumatic event which has caused post-traumatic stress disorder (PTSD).  A June 2005 VA psychiatric contract examination report shows that the Veteran was competently diagnosed with PTSD; this diagnosis was attributed to his September 1997 surgery experience by a psychiatric professional who reviewed the claims folder.  This June 2005 report shows that the examiner assessed the Veteran to be an "adequate historian."  However, an October 2005 VA psychiatric examination report, in a November 2005 addendum following review of the claims folder, determined that the Veteran "is an unreliable historian" and, moreover, the examiner possibly did not agree with a PTSD diagnosis.  This VA psychiatric examination report addendum discusses the claims file contents and expressly acknowledges the June 2005 PTSD diagnosis, but the October 2005 VA examiner does not repeat or endorse that diagnosis in his own findings.  Furthermore, a December 2005 addendum to the VA psychiatric examination report presents the opinion that the Veteran's shown cognitive problems are "deficits [which] date back to childhood and therefore would not be due to any errors in surgery at the VA ... in September 1997," and noted that neuropsychiatric testing revealed findings that do "not appear to have anything to do with the cervical surgery, loss of blood supply or any kind of brain damage that is claimed to have occurred in September 1997."

A November 2005 VA neuropsychology testing report shows that completed test results "are not convincing for an acquired cognitive disorder."  Rather, the neuropsychiatric expert opined, "[d]evelopmental cognitive weakness in verbal abilities are probably being compounded by mood state, affective and pain variables."  The expert diagnosed the Veteran with anxiety disorder, mixed anxiety-depressive disorder, reading disorder, and disorder of written expression.

The Board's February 2008 remand directed the development of additional evidence to allow for adequately informed consideration of the nature and etiology of any current cognitive deficits with proper clarification.  The resulting April 2010 VA psychological examination report states that the Veteran has a cognitive disorder, "also has a mood disorder, and his depressive symptoms seem to be related to his current medical situation ... and the ongoing nature of his medical issues."  The examiner comments that the Veteran's cognition may have declined.  The examining psychologist concludes that the Veteran does not have PTSD, but does have "persistent depressive symptoms which are more likely than not (more than 50%) directly related to his medical condition and subsequent surgical procedure he had in 1997.  He sees that his life changed after that point...."  This finding is significant in that it suggests a basis for potentially finding that the Veteran has a mental disability causally connected to the medical issues allegedly associated with the September 1997 surgery.  The Board found, in its December 2010 remand, that this added additional importance to the questions concerning the significance of the September 1997 VA neck surgery in the etiology of the Veteran's pertinent current medical disabilities, and also the questions of whether any medical disability associated with that surgery was the result of carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA, or as a result of an event that was not reasonably foreseeable.  The Board directed the required further development on remand.

A January 2011 VA examination report (with a March 2011 date of completion of the report) states that "[t]here is no evidence in the records reviewed of any disability documented as being caused by or the result of the cardiovascular disruption that took place in connection with the cervical spine surgery."  The report goes on to state "Organic Brain Injury was not diagnosed in the last C&P MH evaluation and/or in the MH evaluations that have been previously performed on this veteran."  The report then notes that the Veteran "has been diagnosed with Cognitive Disorder, NOS and Mood Disorder, NOS.  None of them have been associated to the Asystole event occuring [sic] on 1997."  This discussion appears, in multiple statements, to be merely reporting what was stated in prior medical determinations rather than actually making critical current medical determinations.  The statement reports that the reviewed evidence does not show that any disability has been "documented as being" attributable to the cardiovascular disruption during VA surgery; the report does not present a new opinion or determination on the matter to adequately address all of the information and contentions as presented.  The statement reports that organic brain injury has not been diagnosed in certain prior evaluations, but does not present a new medical determination based upon examination and the available information/contentions as to whether the Veteran has an organic brain injury productive of his cognitive and mental deficits.  In its March 2012 remand, the Board found that a more adequate VA examination report on this question was necessary.

A May 2012 VA examination report is of record and addresses medical questions pertinent to this case, informed by review of the claims-file and examination of the Veteran.  The May 2012 VA examination report presents information in several sections, addressing questions from the point of view of several different medical disciplines.

This cardiovascular section of the May 2012 VA examination report notes that the Veteran had a diagnosed episode of asystole in 1997.  The report documents the Veteran's account that he had informed the VA surgery / anesthesia team that he had some windpipe damage from prior martial arts training injury.  The Veteran recalled telling the anesthesia team that special adjustments would be needed during planned intubation for the cervical spine surgery.  The Veteran described to the examiner that he believed that the endotracheal tube was placed such that there was carotid artery contact, resulting in cardiopulmonary arrest.  The Veteran reported that he had been pronounced dead, left in the operating room, and was found some time later by a janitor who removed the tube and allowed him to breathe freely again.  The VA examiner noted that the Veteran had previously indicated that he possesses the death certificate allegedly proving that he was pronounced dead.  The VA examiner also noted that at various times the Veteran indicated that his heart stopped for eight to nine minutes.  The Veteran expressed that he had not been the same since the incident.

The May 2012 VA examiner presents the medical determination that the etiology of the Veteran's asystole was "vagal stimulation secondary to attempted endotracheal intubation."  Informed by review of the claims-file and discussion with the Veteran, the VA examiner explains that the Veteran denies any current treatment for heart disease, and that "his chart does not show any treatment or diagnosis of heart disease."  Most pertinently, the VA examiner explained that review of post-operative notes in 1997 reveal that the Veteran had a cardiac evaluation after the asystolic episode, and the conclusion was that the asystolic episode was a result of an exaggerated vagal response that occurred as a result of the attempted intubation.  The VA examiner noted that that the anesthesia notes report that the vocal cords were closed in spasm and that intubation was aborted due to difficulty with tube placement and the asystolic episode.  The VA examiner states: "It is apparent from the records that the endotracheal tube was not placed at that time.  The VA examiner notes that the cardiac evaluation specifically notes that there was no evidence of ischemic heart disease or any other evidence of underlying cardiac disease of any type; the VA examiner comments that review of the Veteran's substantial available records "are completely silent for any further cardiac evaluation" and "no further cardiac suggestive symptoms are noted...."

The section of the May 2012 VA examination report addressing muscular disability notes that the Veteran regularly uses a neck brace and that the Veteran reports that he has been unable to work since the surgery, and he attributes this to the asystolic episode and resulting complications.

The sections of the May 2012 VA examination report addressing cranial and central nervous disability discuss the Veteran's account that during the attempted cervical spine surgery his heart stopped, he was declared dead and left unattended in the operating room for hours "before being found by a janitor who removed the endotracheal tube."  The Veteran described that once the tube was removed, he was able to breathe again, and "[h]e reports being very frightened and confused and hid in a closet for a number of hours before being found, as he was afraid on wakening in the [operating room] that he was under enemy fire and needed to hide."  The Veteran reported that since that time he has had progressive difficulty with memory and feels "weak all over."  The VA examiner noted that the Veteran reported no specific cranial nerve complaints.  The VA examiner found "[n]o evidence on this exam of any discrete cranial nerves dysfunction...."  Additionally, "there are historical complaints of difficulty swallowing certain foods, but swallow appears grossly intact on this exam."  Furthermore, "[t]here is no other evidence in chart review of any history of cranial nerve dysfunction or claim for such."  Finally, with attention to central nervous system concerns, the VA examiner explained: "No diagnosis provided as there is no evidence of any central nervous system disease process that can reasonably be attributed to a 30 second asystolic event."

The section of the May 2012 VA examination report focusing upon the Veteran's orthopedic neck disability includes detailed diagnostic imaging findings and shows a diagnosis of degenerative disc disease of the cervical spine.  The Veteran reported a history of having had a large roll of carpet fall onto his neck, and reported neck pain and right arm pain following that incident while also telling the examiner that imaging studies revealed that he had "ruptured" several discs in his neck.  The VA examiner discusses that the Veteran ultimately underwent fusion of the cervical spine at the C4-5 level for treatment, and the Veteran maintains that the pain was worsened by the surgery and he has had constant pain ever since.  The Veteran reported that the physicians admitted to him that they had "botched" the surgery.  The Veteran used a "Philadelphia collar" neck brace on a constant basis.

The May 2012 VA examiner offers a medical opinion specifically addressing the question of whether the Veteran incurred a chronic disability or suffered additional disability as a result of any cardiovascular disruption connected with the September 1997 VA neck surgery.  The May 2012 VA examiner presents a medical opinion informed by review of the pertinent medical records, the other contents of the claims-file, and "medical literature re: ischemic brain injury, and additionally literature regarding cervical spine degenerative disease, acute injuries and appropriate interventions."  The May 2012 VA examiner's medical opinion, thus informed, is (with emphasis added): "there is less than a 50% probability ... that the Veteran incurred a chronic disability or suffered additional disability as a result of any cardiovascular disruption connected with the September 1997 VA neck surgery."

The rationale for this opinion was that after extensive review of the claims-file and pertinent medical literature, as well as examination of the Veteran: "The Veteran is not felt to have suffered any chronic disability related to the cardiovascular disruption that took place at his surgery at the VA in 1997.  He is noted to have sustained a 30 second asystolic event, with prompt resumption of a normal sinus rhythm."  The VA examiner discusses that the Veteran was wakened in recovery, and examined, and that there was specific notation of the absence of any neurologic deficits.  The VA examiner cited that the cardiology examination revealed no cardiac pathology.  The VA examiner cited that the Veteran's neuropsychological testing (the November 2005 VA neuropsychology testing report, discussed above) specifically referred to functions that would be expected to be compromised by injury associated with asystolic event, and these deficits were not present.  The opinion cites that the neuropsychiatric testing report shows that per the Veteran's own admission he had had long-standing difficulty with reading, spelling, and retention in school and historically performed poorly.  The VA examiner discussed that the neuropsychological testing was consistent with those deficits more likely than not characteristic of his pre-morbid functional level.

The VA examiner cites that that the asystolic event itself was quite brief at 30 seconds duration, and such a brief period of asystole would not be expected to be associated with any ischemic damage to the brain, and thus not expected to be associated with the claimed associated disabilities.  The opinion cites that there is no evidence of an organic brain disorder such as might be expected from ischemic brain injury, and again explains that the Veteran's neuropsychological studies are more characteristic of a low normal pre-morbid intellectual capacity, compounded by a chronic pain state and associated depressive symptoms.

The May 2012 VA examiner's opinion also finds that the Veteran's chronic pain state, as a disability in and of itself, "is not felt to be related to the cardiovascular disruption, as pre-operatively he was already suffering from significant pain."  The VA examiner finds "[n]o other physical deficit that could be attributed to ischemic brain damage or resulting organic brain disorder."  On the basis of the discussion of rationale and cited facts, the May 2012 VA examiner concluded that (with emphasis added) "there is a less than 50% probability that the Veteran incurred a chronic disability or suffered additional disability as a result of any cardiovascular disruption connected with the September 1997 VA neck surgery."

The May 2012 VA examiner separately offered another medical opinion specifically addressing the question of whether the Veteran incurred a chronic neck disability or suffered additional neck disability as a result of the September 1997 VA neck surgery.  The May 2012 VA examiner presents this medical opinion informed by review of the pertinent medical records, the other contents of the claims-file, "pertinent medical literature" including "literature regarding cervical spine degenerative disease, acute injuries and appropriate interventions."  The May 2012 VA examiner's medical opinion, thus informed, is (with emphasis added): "there is a less than 50% probability that the Veteran incurred a chronic neck disability or suffered additional neck disability as a result of the September 1997 VA neck surgery."

The rationale for this opinion was that after extensive review of the claims-file, pertinent medical records regard the events, and examination of the Veteran, "it is felt that the surgery itself did not aggravate any pre-existing condition" because the Veteran's symptoms following surgery were not significantly more severe than those immediately prior to surgery.  The VA examiner cited that "[t]he Veteran, on presentation for the surgery, was noted on H&P pre-operative notes to be in significant pain requiring significant doses of narcotics at that time."  The VA examiner describes that he "had suffered the injury about 12-15 months prior to agreeing to proceed with the surgery."  The VA examiner cites that "[o]n review of his records, it is noted that even prior to the accident in 1996 in which he reported that a large roll of carpet landed on his neck, there were multiple complaints of neck pain, including complaints noted as early as 1993 due to an MVA [motor vehicle accident]...."  Additionally, "there were further imaging studies done in 1994 due to neck pain, and on a film of 06/1994, there is a reference to 3 major auto accidents having occurred over the course of 8 months."  The VA examiner goes on to cite that "[f]urther imaging for neck pain was done in 1995, before the more definitive imaging done in 1996 following the injury from the carpet landing on his neck demonstrating ruptured discs."  The VA examiner explains that "[s]ubsequent to the cervical spinal surgery, he continued to complain of pain, follow up imaging did reveal a stable fusion with no evidence of spinal cord damage."

Continuing on, the VA examiner cites that the Veteran "did have another MVA in 1998 and again in 2004, and he complained of neck pain worsening following each of these as well."  Significantly: "He is noted on the films preceding the injury of interest, that he had already been developing degenerative changes at the level of operative interest, 6 years prior to the carpet laying incident."  The VA examiner discusses that the Veteran was complaining of "quite severe pain" present "prior to the surgery," and that on post-operative films "the degenerative changes that were seen pre-operatively were still present, the cord itself did not appear to have any further damage, and underlying pre-existing degenerative changes at other levels had continued to progress as expected of this type of process."

On this matter, the May 2012 VA examiner concludes (with emphasis added):

Given that the Veteran had long-standing neck pain, had suffered a number of motor vehicle accidents prior to the surgery, presented pre-operatively with severe pain, and given that post-operative films showed improvement at the surgical site with persistence of previously identified degenerative changes, it is felt that no neck disability resulted from the surgery itself.

The VA examiner finds that "[t]he Veteran has underlying degenerative disc disease, aggravated by multiple injuries, and the surgery itself was meant primarily to reduce the myelopathy...."  Indeed, the examiner finds that "comparing current exam to exam pre-operatively, there is significant improvement in myelopathic findings, which are not seen to any appreciable degree currently."  The examiner finds that the Veteran's chronic pain state results "from pre-existing degenerative disease of the cervical spine, aggravated by multiple injuries to the neck both pre and post-operatively, unrelated to the surgery itself."

Finally, the May 2012 VA examiner addresses the questions raised by the fact that the Veteran continues to utilize a neck brace many years after the VA surgery.  The VA examiner notes that the Veteran is documented to have been wearing the "Philadelphia type collar since the surgery," and that "about 6 weeks post-operatively, he was advised at that time he could remove it for short periods of time."  The VA examiner notes that in the medical records "there is mention of the presence of the collar, even in 2004, however, there is no mention of its necessity."  The VA examiner explains that "[t]hese collars are typically worn in these cases primarily to provide stabilization to the neck while the fused area heals."  Significantly, the VA examiner finds that "[s]ubsequent films reveal adequate healing, in particular films in 2004...."  The VA examiner notes that there "was no fracture of the cervical vertebrae" nor was there "other evidence of instability that would necessitate the ongoing need for the collar, at this juncture now 15 years post-operatively-unless the Veteran chooses to use it for comfort."

A separate May 2012 VA psychiatric examination report, prepared by a VA clinical psychologist, addresses a pertinent psychiatric diagnostic question raised in this case.  Informed by examination of the Veteran and review of the claims-file, the May 2012 VA psychiatric examiner finds that the Veteran does not meet the criteria for a PTSD diagnosis, but is diagnosed with recurrent major depressive disorder "more likely than not related to his on-going physical problems of Neck pain and of Knee pain [a]nd back pain."  The examiner notes the Veteran's complaint of memory problems since his neck surgery, said to have improved over time, but does not opine as to the etiology of such reported deficit.  This May 2012 psychiatric examination report does document the Veteran's own account of suffering a "broken neck in 1983 when his wife's brother hit him in the back of the neck with a 2X4.  This broke 3 vertebrae."  Additionally, the report documents the Veteran's account of the September 1997 surgery featuring: "he was declared dead," "a female janitor came along and pulled out the intubation tube and he cam[e] back to life.  He then hid in a closet until 5:00PM when another male janitor discovered him and brought him [to] the attention of the staff....  [H]e could not leave the hospital for the next 3 days because the VA staff kept him sedated."

An April 2013 addendum to the January 2011 VA examination report presents the January 2011 VA examiner's opinion, following a detailed review the claims-file, that (with emphasis added) "[t]here is no evidence in the records reviewed showing carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment...."  This VA examiner also concluded that the review of the records revealed no evidence of "an event not reasonably foreseeable (not an expected consequence of the surgery) that caused or aggravated veteran's cervical condition."  The author presents a rationale citing no cervical complications were reported after the September 1997 surgery, and citing that information contained in the record indicates that symptoms of cervical myelopathy, pain and limitation of motion improved significantly after the surgery.  On this basis, the author concludes that the VA surgery did not result in any additional neck disability.

The Board acknowledges the lay statements of record indicating that the Veteran has incurred additional neck disability and mental disability as a result of VA treatment.  The Board recognizes that case law has established that lay assertions may serve to support a claim for benefits by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  The Veteran is certainly competent to report events and symptoms featuring his experience of painful neck symptomatology and mental health symptomatology.  However, some of the Veteran's statements with regard to the events associated with his September 1997 VA treatment are inconsistent with the pertinent medical documentation; the Board is compelled to find that the Veteran's account of being left for dead on the operating table for an extended time until having a janitor remove a tube and revive him is entirely contradicted by the probative medical documentation of the events surrounding the September 1997 procedure; the Veteran's account may even be considered inherently incredible.  The Board accepts the facts as documented by the contemporaneous medical documentation, and those facts have now been studied and addressed by medical experts who have determined that no new or additional disability of the neck or the brain was caused during the VA treatment, and that there was no instance of fault of unforeseeable event.  The facts cited by the probative medical opinions discussed above are substantially consistent with the Board's own review of the evidence of record in all pertinent respects.

To the extent that the Veteran has reported that a doctor admitted to him that the surgery in question had been "botched," the Board notes that this account is inconsistent with all of the other evidence of record.  The medical documentation associated with the surgery and from subsequent evaluation of the surgery indicate that the surgery was conducted properly; there is no competent evidence in this case indicating that the surgical procedure was not performed properly in this case.  The Board notes that the U.S. Court of Appeals for Veterans Claims has held that a lay person's statement about what a physician told him, i.e., "hearsay medical evidence," cannot constitute the medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence."  See Robinette v. Brown, 8 Vet. App. 69 (1995).

There is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a disability.  The Board finds that questions of identifying specific diagnosis and etiology of complex internal pathologies such as cervical spine disability, organic brain injury, and psychiatric pathologies are medical questions requiring specialized knowledge and expertise; such questions are not generally resolvable through information available to lay senses.  Consequently, the Veteran's own assertions as to diagnosis and etiology in this case have no probative value.

Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology).  However, a determination concerning diagnosis of a specific complex internal disease or a determination concerning the possibility of a causal relationship between two different complex disease pathologies requires specialized training, and may therefore not be established by lay opinions on etiology or diagnosis.

To the extent that the Veteran's lay statements address the questions of medical diagnosis, medical causation, or medical negligence, as a layperson he is not competent to offer such an opinion.  As discussed above, appropriate medical opinions have been obtained, and the most probative medical opinions weigh against the Veteran's claim.

The preponderance of the evidence is against a finding of any additional disability occurring as a result of VA treatment due to carelessness, negligence or lack of proper skill or error in judgment or similar instance in fault, or due to an unforeseen event.  Rather, it appears that the Veteran was properly treated for cervical herniated nucleus pulposus in September 1997.  The May 2012 and April 2013 VA medical opinions together present clear determinations indicating that no fault or unforeseeable event is shown in the VA medical care at issue; there is no probative evidence to the contrary that competently addresses the appropriate medical standards of care.

The probative medical evidence, particularly featuring the May 2012 VA and April 2013 VA medical opinions, indicates that the care at the VA facility was proper and did not rise to the level of carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA; nor does any evidence otherwise pertinently suggest an event that was not reasonably foreseeable.  The probative medical evidence, particularly featuring the May 2012 and April 2013 VA medical opinions, indicates that it is unlikely that new or additional neck disability or organic brain injury was caused by or a result of VA treatment in September 1997.  The Board notes that the April 2013 addendum to the January 2011 VA examination report also presents a clear opinion indicating that no new or additional neck disability resulted from the September 1997 surgery.  The probative medical evidence in this regard is based on review of the entire record and supported by detailed discussion of rationale with reference to the specific pertinent facts.  The Board finds the negative medical opinions, now featuring the May 2012 and April 2013 VA medical opinions, to be persuasive and entitled to considerable weight.

The probative competent evidence indicates that the Veteran did not incur new or additional neck disability nor any organic brain injury as a result of VA treatment, and the probative competent evidence indicates that the there was no pertinent manner of fault or reasonably unforeseeable event involved in the surgery.  Neither of these necessary elements (new or additional disability and causal VA fault or reasonably unforeseeable event) is met, and the Veteran's claim must be denied.

The weight of the most probative competent evidence now indicates that the Veteran does not have a diagnosis of PTSD associated with the VA medical treatment, but rather has other variously diagnosed psychiatric disabilities.  Importantly, regardless of any potential psychiatric diagnosis the Veteran may have, the claim for 38 U.S.C.A. § 1151 benefits on the basis of psychiatric disability cannot be granted because the weight of the most probative evidence shows no incident of fault on the part of VA nor an event that was not reasonably foreseeable.  Without fulfillment of the element requiring fault or an unforeseeable event, any psychiatric disability the Veteran alleges he developed in connection with the surgery would not be subject to 38 U.S.C.A. § 1151 benefits.  The May 2012 and April 2013 VA medical opinions together present clear determinations indicating that no fault or unforeseeable event is shown in the VA medical care at issue; there is no probative evidence to the contrary that competently addresses the appropriate medical standards of care.

To the extent that the probative competent evidence indicates that the Veteran does have a psychiatric diagnosis attributable to his difficulties with physical medical problems, including his neck disability, this provides no adequate basis for any grant of benefits in this appeal.  As discussed above, the weight of the probative competent evidence is against finding that any new or additional neck disability is attributable to the VA medical care (and the probative evidence is furthermore against finding any instance of fault or unforeseeable event); accordingly, no benefits under 38 U.S.C.A. § 1151 are warranted for any psychiatric diagnoses linked to the neck disability.

The most probative evidence, featuring the May 2012 VA and April 2013 VA medical opinions, indicate that the shown medical history and medical treatment lead to a medical conclusion that the Veteran has no additional disability as a result of VA treatment due to carelessness, negligence or lack of proper skill or error in judgment, or due to an unforeseen event.  Indeed, the probative May 2012 VA and April 2013 VA medical opinions indicate that neither of the necessary elements is met: (1) there was no qualifying instance of fault on the part of VA meeting the pertinent threshold for the benefit sought, and (2) there was no new or worsened disability resulting from the events associated with the pertinent VA treatment in September 1997.

In sum, the Board must find that entitlement to compensation under 38 U.S.C.A. § 1151 for a neck disability and for mental disability is not warranted.  The preponderance of the evidence is against the Veteran's claims for 38 U.S.C.A. § 1151 compensation for a neck disability and for mental disability.  As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b).


ORDER

The appeal is denied as to both issues.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs