Citation Nr: 1753737 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 12-33 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. 2. Entitlement to service connection for tumors on the neck and feet. 3. Entitlement to service connection for residuals of an injury to multiple fingers. 4. Entitlement to service connection for a skin disorder of the chest, legs, and groin. 5. Entitlement to service connection for facial acne. 6. Entitlement to service connection for a back disability, to include as secondary to the service-connected bilateral knee disabilities. 7. Entitlement to service connection for a lung disorder, claimed as secondary to in-service asbestos exposure. 8. Entitlement to service-connected for peripheral neuropathy claimed as nerve damage, to include as secondary to Agent Orange exposure. 9. Entitlement to service connection for restless leg syndrome (RLS), to include as secondary to a back disorder. 10. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disabilities due to neck surgery, including a neck condition, voiding dysfunction, erectile dysfunction, left-sided numbness, right upper extremity condition, difficulty walking, and sleep disturbance, to include entitlement to a temporary 100 percent convalescence rating following surgery. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to April 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from April 2010 and May 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In the April 2010 rating decision, in pertinent part, the RO granted service connection for right and left knee disabilities; and, denied service connection for PTSD; tumors on the neck and feet; a finger injury; a skin disorder of the chest, legs and groin; facial acne; a back condition; nerve damage; RLS; a lung condition; bilateral hearing loss; and, tinnitus. In the May 2012 rating decision, the RO denied compensation pursuant to 38 U.S.C. § 1151 for residuals of surgical procedure to include a neck condition, voiding dysfunction, erectile dysfunction (ED), left sided numbness, right upper extremity condition, problem walking, and sleep difficulty. In a January 2017 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. Accordingly, those issues are no longer in appellate status or before the Board. In August 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue(s) of service connection for tumors on the neck and feet; a finger injury; a skin disorder of the chest, legs and groin; facial acne; peripheral neuropathy; a back condition; and RLS are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's acquired psychiatric disorder, variously diagnosed as PTSD and depressive disorder is related to an in-service stressor. 2. The Veteran's claimed additional disability resulting from the Veteran's VA cervical spine surgery was neither a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment; nor, was any additional disability due to an event that was not reasonably foreseeable. 3. The Veteran provided informed consent prior to surgical treatment which included the risks that eventually occurred and led to his additional disability. 4. The Veteran does not require convalescence following surgery for a service-connected disability. 5. The Veteran does not have a current lung disorder related to in-service asbestos exposure. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for entitlement to compensation benefits for claimed residuals of cervical spine surgery pursuant to 38 U.S.C.A. § 1151 have not been met. 38 U.S.C § 1151 (2012); 38 C.F.R. § 3.361 (2017). 3. The criteria for entitlement to a temporary 100 percent evaluation based on the need for convalescence following surgery for a service-connected disability have not been met. 38 U.S.C. § 1156 (2012); 38 C.F.R. § 4.30 (2017). 4. The criteria for service connection for a lung disorder have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in March 2009 and January 2011 letters. 38 U.S.C §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). See also, Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records (STRs), outpatient surgical records and post-service records. The RO obtained a medical opinion in order to decide the 1151 claim. With regard to the claim for a lung disorder, a VA examination is not necessary to decide the claim because there is no evidence of an asbestos-related lung disorder. Accordingly, VA is not obligated to obtain a medical nexus opinion. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2012); 38 C.F.R. § 3.159(c)(4)(i) (2017). The Veteran was provided a hearing before the undersigned VLJ in August 2017. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). II. Service Connection The Veteran seeks service connection for an acquired psychiatric disorder to include depression and PTSD; and, for a lung disorder claimed as secondary to in-service asbestos exposure. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed .Cir.2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed.Cir.2004); 38 C.F.R. § 3.303. Psychiatric Disorder The Veteran's service treatment records, are negative for complaints or findings of a psychiatric disorder. However, service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran's reported stressor has been corroborated, which involved being on a Navy ship when it was attacked. See August 2009 Defense Personnel Records Image Retrieval System (DPRIS) response from the U.S. Army and Joint Services Records Research Center (JSRRC). The Veteran has current diagnoses of depression adjustment disorder and PTSD. February 2010 and July 2016 VA examiners opined that the Veteran did not meet the DSM criteria for PTSD; and, that the Veteran had a diagnosis of depressive disorder and adjustment disorder, respectively; and, that such diagnoses were related to painful medical problems. By contrast, records from the Vet Center in 2009 and 2010 reveal a diagnosis of depression, and chronic symptoms of PTSD secondary to in-service stressors. The Veteran received counseling for typical PTSD symptoms such as nightmares, avoidant behavior, depression, guilt, insomnia, irritability and anger. In summary, the Veteran has a current acquired psychiatric disorder which has been related to a corroborated in-service stressor by at least one mental health provider. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, as here, there is a reasonable doubt regarding service origin, such doubt shall be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Here, the Veteran has diagnoses of adjustment disorder and depressive disorder; however, the Vet Center records also show that the Veteran's professional mental health counselors, who got to know the Veteran over time, as opposed to a one-time snapshot during a VA examination, found that the Veteran had significant PTSD symptoms that were related to in-service stressors. Likewise, the Vet Center counselors did not specifically distinguish the Veteran's depression and anxiety from his in-service stressors. Moreover, the Veteran testified at his August 2017 as to specific examples of PTSD symptoms that he regularly experiences; and, while the Veteran's current physical condition may have an effect on the Veteran's depressive symptoms, this alone does not preclude a finding that the overall disability resulted from in-service stressors. The totality of the evidence raises reasonable doubt as to the origin of the Veteran's acquired psychiatric disorder. In light of the foregoing, and in resolving doubt in the Veteran's favor, the Board finds that the Veteran's acquired psychiatric disorder was, as likely as not, incurred in service, and therefore service connection is warranted. Lung Disorder The Veteran asserts that he was exposed to asbestos during service in the Navy. The RO determined that the Veteran's probability of asbestos exposure as a radar man during service was minimal. See April 2010 Rating Decision. Irrespective of whether the Veteran was exposed to asbestos in service, the medical evidence does not support a finding of an asbestos-related lung condition. The STRs are negative for complaints or treatment of a lung condition. Post-service records reveal that a pulmonary function test in 1988 noted small airway disease consistent with smoking. The record does not reflect that the Veteran has been diagnosed with a lung condition that is typically associated with asbestos exposure. Additionally, at his August 2017 Board hearing, the Veteran testified that he was not being treated for a lung condition. In summary, the competent and probative evidence weighs against a finding that the Veteran has a current asbestos-related lung condition, or any other lung condition related to service. The Veteran is not being treated for a lung disorder, and post-service treatment records attribute the Veteran's small airway disease to smoking. There is no evidence to the contrary. Accordingly, service connection for a lung disorder is not warranted. III. 1151 Claim The Veteran asserts that compensation is warranted under the provisions of 38 U.S.C.A. § 1151, due to the actions of VA medical personnel in September 2010. Specifically, the Veteran asserts that he incurred additional disability following cervical spine surgery including a neck condition, voiding dysfunction, erectile dysfunction, left-sided numbness, right upper extremity condition, difficulty walking, and sleep disturbance. When a claimant suffers additional disability or death as the result of VA training, hospitalization, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. For section 1151 claims, a claimant is required to show fault or negligence in medical treatment. Specifically, the claimant must show additional disability which was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. In the alternative, the claimant must show that he suffers from additional disability which was caused by VA hospital care, medical or surgical treatment or examination; and, that the proximate cause of the additional disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151 (a)(1)(A), (B). In determining whether an additional disability exists, VA compares the claimant's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his or her 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 claimant's additional disability. Merely showing that a veteran received care or treatment and that a 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 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 claimant'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 claimant's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 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). The record reflects that in September 2010, the Veteran underwent a surgical procedure at a VA medical center. The surgical report indicates that the procedure included an anterior cervical diskectomy with decompression of spinal cord and bilateral anterior foraminotomies at C3-4 and C4-5; and, anterior cervical fusion from C3 to C5 with interbody allograft at C3-4 and C4-5 with plate and screw instrumentation. The operative report also notes that there were no complications encountered during the operation; there were some signal changes on the left side during the decompression of C3-4, but those resolved after a few minutes and certainly had resolved by the end of the case. A September 2010 VA consent form signed by the Veteran lists several known risks of the procedure, including, but not limited to, damage to nerves; muscle stiffness, aches or pains; pain or discomfort; paralysis; spinal fluid leak, and/or weakness. The consent form also notes that the procedure may not cure or relieve the condition, and that the administration of anesthesia may also lead to paralysis and/or loss of sensation or limb function. At a May 2011 VA examination, the Veteran reported that he suffered a back and neck injury during service following an explosion. He reportedly has suffered from neck and back pain since that time. The Veteran also noted that he became paralyzed after his 2010 neck surgery. The examiner opined that the Veteran's numbness, tingling, and pain was as likely as not connected to in-service injuries. The above opinion does not address the question of whether the Veteran incurred additional disabilities as a result of his September 2010 VA surgery. In an August 2011 addendum opinion, the examiner opined that the Veteran's weakness and numbness of the left side of the body was mostly likely caused by or as a result of his cervical spine surgery; however, in another addendum opinion in March 2012, the VA examiner, who was a surgical physician, indicated that the Veteran's mild weakness of the left side of the body was not beyond the expectation of the surgery and it did not reflect any negligence or lack of proper skill on the part of the surgeon. Although the Veteran asserts that the additional disability following surgery was due to VA negligence, the competent evidence of record does not support that assertions, and the Veteran does not possess the requisite medical training necessary to provide a competent opinion on this issue. The Veteran is competent to report symptoms that began after the surgery, but the record reflects that the Veteran's numbness, tingling, and weakness following surgery was a reasonably foreseeable outcome of that surgery. This is noted in the consent form which the Veteran signed prior to the surgery, and a VA surgical physician opined that the Veteran's additional disability was a reasonably foreseeable consequence of the surgery. In some instances, laypersons are competent to provide an opinion of a medical nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)(providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). However, since the opinion in this case involves a technical conclusion regarding the ordinary standard of care and whether it was exercised, the March 2012 VA examiner's opinion is more probative than the Veteran's lay assertions. The examiner has expertise, experience, education, and training that the Veteran is not shown to have. As such, the Veteran's opinion is outweighed by the other evidence of record. Additionally, the record does not contain any competent evidence to show that the Veteran's other claimed conditions resulted from the September 2010 cervical spine surgery. Specifically, the VA examiner did not indicate that the Veteran had erectile dysfunction, voiding dysfunction or sleep difficulty as a result of the September 2010 cervical spine surgery. While the Veteran is competent to state that these conditions began following the surgery, he does not possess the requisite medical expertise to provide a competent opinion as to causation. Moreover, regardless of when the Veteran's claimed additional disabilities had their onset, the VA examiner already considered whether there was any negligence, carelessness, or lack of proper care with regard to the cervical spine surgery, and none was found. In summary, the evidence of record reflects that the Veteran's claimed additional disabilities following the September 2010 cervical spine surgery were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment, nor was the numbness, tingling and weakness an event that was not reasonably foreseeable. Accordingly, the Board finds that the preponderance of the evidence is against his claim for benefits under 38 U.S.C.A. § 1151. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In light of the foregoing, there is no legal basis to grant entitlement to a temporary 100 percent convalescent rating as the evidence does not show that the Veteran required convalescence following surgery for a service-connected disability. See 38 C.F.R. § 4.30. ORDER Service connection for an acquired psychiatric disorder, variously diagnosed as adjustment disorder, depressive disorder, and PTSD, is granted. Service connection for a lung disorder is denied. Compensation under 38 U.S.C. § 1151 for additional disability following September 2010 cervical spine surgery is denied. A temporary total disability rating based on the need for convalescence following surgery for a service-connected disability is denied. REMAND The Veteran seeks service connection for tumors on the neck and feet; residuals of an injury to multiple fingers; a skin disorder of the chest, legs, and groin; facial acne; peripheral neuropathy, claimed as secondary to in-service herbicide exposure; a back disability claimed as secondary to the service-connected bilateral knee disabilities; and, restless leg syndrome (RLS), claimed as secondary to the back disability. At his August 2017 Board hearing, the Veteran testified that he was treated for chemical burns to his chest, legs and groin in service following an accident which involved spilling a small paint-size can of some chemical that smelled like bug spray and/or fuel. Hearing Transcript, p. 4. The Veteran also testified that he had foot problems including toe nail fungus and the development of ganglion cysts in service. He testified that he had a ganglion cyst on his foot "crushed" during service. Hearing Transcript p. 5. Additionally, the Veteran maintains that he suffered a crush injury to four fingers in service when a fellow soldier accidentally slammed the hatch door shut on the Veteran's ring and pinky fingers of each hand. The Veteran testified that he was treated on the ship and had two broken fingers with a very bad cut on one of the fingers. Hearing Transcript, p. 9. Finally, the Veteran maintains that his back disability is secondary to the service-connected bilateral knee disabilities. First, a review of the Veteran's STRs does not show that the Veteran was treated for cysts, burns, toe fungus, or broken fingers; however, given the Veteran's reports of in-service treatment for these conditions, it remains unclear as to whether the Veteran's STRs are complete. Additionally, the Veteran served aboard the U.S.S. Goldsborough (DDG-20), and a March 1973 STR notes that, "[The Veteran] was sent over on consult [for knee pain] in Subic (unfortunately SF-513) lost/misplaced)". A March 1973 in-patient record shows that the Veteran was transferred to a U.S. Naval Hospital "via USAF Hosp, Clark, APO SF 96274." These notations raise the possibility that the Veteran may have additional outstanding STRs given that he was routed through Clark Air Force Hospital in the Philippines and some records were noted to be misplaced/lost. In light of the foregoing, the Agency of Original Jurisdiction should conduct a comprehensive search for additional service treatment records from all potential sources. In conjunction with the above, VA examinations to obtain nexus opinions should be afforded to the Veteran as appropriate. Accordingly, the case is REMANDED for the following action: 1. Contact any appropriate source(s), to specifically include the National Personnel Records Center (NPRC), U.S. Joint Services Records Research Center (JSRRC), and any other potential source of Air Force hospital treatment records from Clark Hospital in The Republic of the Philippines and/or treatment records from the USS Goldsborough related to the Veteran's active duty service with the Air Force from February 1972 through April 1973. In making any request, clearly identify the source(s) contacted. All records and/or responses received should be associated with the claims file. If the records cannot be obtained after reasonable efforts have been made, issue a formal determination in this regard, and notify the Veteran of the inability to obtain the records. 2. After completing the requested actions, schedule the Veteran for appropriate VA examinations to obtain nexus opinions in conjunction with the Veteran's claims. Even if no additional STRs are found, the examiner should presume, for purposes of the requested opinion, that the Veteran's statements of in-service injuries to four fingers, burns of the skin, facial acne cyst removal and back pain are credible. The entire record must be reviewed by the examiner(s). All appropriate tests and studies should be conducted and clinical findings should be reported in detail. Based on the examination results and the review of the entire electronic record, including a copy of this remand, the examiner(s) should provide an opinion as to whether the Veteran has a current skin disorder (to include burns on the chest, legs and groin, facial acne, foot/toenail fungus and/or a cyst disorder of the feet and neck, and if so, whether such disorder(s), at least as likely as not (a probability of 50 percent or greater) began in or are related to an injury or disease incurred during active service. The examiner is also asked to opine as to whether the Veteran has arthritis or other disability of the ring and fifth fingers of both hands, and if so, whether such disability, at least as likely as not, began in service or is related to the claimed in-service hatch injury. The examiner is also asked to opine as to whether the Veteran has a current lumbar spine disability, peripheral neuropathy, and/or restless leg syndrome; and, if so, whether any such lumbar spine disability and/or peripheral neuropathy and/or restless leg syndrome is, as likely as not, related to service, to include whether it is proximately caused by, or a result of, the Veteran's service-connected bilateral knee disabilities. If the examiner finds against direct causation, then the examiner should opine whether the Veteran's lumbar spine disability, peripheral neuropathy and/or restless leg syndrome, if any, is aggravated as a result of the bilateral knee disability. In this regard, the examiner's attention is directed to the Veteran's August 2017 Board hearing testimony, as well as the possibility that the Veteran's STRs may be incomplete. Please provide a complete explanation for the opinion. 3. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran an SSOC that includes clear reasons and bases for all determinations, and afford him an appropriate time period for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs