Citation Nr: 1800503 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 15-09 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for headaches, and, if so, whether the reopened claim should be granted. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for nerve damage, to include to the spine and/or right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, wife ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972, to April 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2017, the Veteran had a personal hearing before the undersigned VLJ; a transcript of the hearing is of record. In the instant case, the Veteran is attempting to reopen a claim for service connection for headaches that was denied in a January 1984 rating decision. The RO denied reopening of the claim in September 2010. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). In this decision, the board is reopening and granting service connection for headaches and denying entitlement to compensation under 38 U.S.C. § 1151. FINDINGS OF FACT 1. The Veteran has pain in the right lower extremity (RLE). 2. The Veteran has not been diagnosed with nerve damage. 3. An additional disability of nerve damage or pain in the RLE did not result from VA treatment. 4. The Veteran's painful RLE was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of VA hospital treatment, nor the result of an event not reasonably foreseeable. 5. In an unappealed January 1984 decision, the RO denied the claim for service connection for headaches. 6. Evidence received since the January 1984 decision, the most recent final decision, is new and material and raises a reasonable possibility of substantiating the service connection claim for headaches. 7. Resolving reasonable doubt in the Veteran's favor, headaches are residuals of a June 1973 motor vehicle accident in the line of duty. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for nerve damage and resulting complications, including pain in the right lower extremity, are not met. 38 U.S.C. § 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). 2. The January 1984 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. Evidence received since the January 1984 rating decision is new and material for purposes of reopening the claim for service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONs The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Section 1151 compensation Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. The additional disability qualifies for compensation if it is not the result of the veteran's own willful misconduct, but was instead caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the proximate cause of the additional disability must be attributable to: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or, 2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(a). To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, evidence must show that the VA medical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the medical treatment without the veteran's informed consent. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be determined in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). The Veteran asserts that he has spinal nerve damage with resulting pain down his right leg to the ankle due to an epidural steroid injection (ESI) that was performed by VA in September 2014. The record shows that he underwent the September 10, 2014, ESI to treat low back pain which radiated down the left lower extremity. His symptoms prior to the ESI included 10 years of low back pain, pain in the left leg and thigh, and mild to moderate neural foramen stenosis at L5/S1 on the right side. The record contains the signed informed consent, and the Veteran acknowledges that nerve damage was noted as a potential result of the procedure. Additionally a Pre Procedure Progress Note, completed by his doctor on the day of the procedure, specifically notes that the risks of spinal cord infarction, nerve injury with resultant weakness, numbness and/or pain in the extremity, and worsening of pain were discussed with the Veteran. It also notes that the Veteran suffered from greater trochanteric bursitis pain bilaterally, left greater than right. Sensory and motor strength to the lower extremities were largely intact. The procedural report, also completed and signed on the day of the surgery, indicated that the Veteran was awake and conversant throughout the procedure and voiced no complaints. No complications were noted during the procedure. On discharge, the Veteran was advised to gradually resume regular activity as tolerated over the next week and to seek medical assistance should he have severe pain at or around the injection site or in the upper or lower extremity. On September 11, 2014, the Veteran reported residual pain from the ESI at his physical therapy (PT) appointment and requested that traction be delayed. Though he reported a sore right hip "since his injection" at his September 22, 2014, PT appointment, the record reflects a general trend of improvement in the Veteran's symptoms until October 15, 2014. However, on October 16, 2014, the Veteran visited his pain management physician and reported that he had pain that rated as 9/10 down the RLE that he thinks started a day after the ESI. On examination, sensory and motor strength to the lower extremities were largely intact. RLE pain was not noted at the following PT appointment, and an October 28, 2014, MRI showed bones and soft tissues within normal limits for age with spurring involving the right L4/L5 neural foramina and mild, broad-based disc bulges demonstrated at L3/L4 and L4/L5 levels. A February 2015 neurosurgery note reported a 10 year history of severe, intermittent left thigh and leg pain which progressed until injections were recommended. The Veteran reported that PT was unsuccessful and he slept in a recliner to relieve his pain. He walked with a slow, broad-based gait and exhibited discomfort on internal and external rotation of both hips - refusing to allow the physician to examine his greater trochanters due to severe pain. On examination, the Veteran exhibited fair strength in the lower extremities and showed no signs of acute nerve root compression or loss of function. In May 2015, the Veteran complained of a burning sensation with use of a topical pain reliever. At his September 2017 hearing, the Veteran testified that the pain on his right side began during the procedure. He indicated that his leg was jumping during the procedure, and a nurse advised the physician that he had probably hit a nerve. He reports being unable to bend his leg the following day and informing his therapist regarding a burning sensation in the right leg. He noted that creams and therapy were unsuccessful As mentioned above, his symptoms prior to the ESI included bilateral greater trochanteric bursitis, low back pain, and pain in the left lower extremity. Based on the above evidence, his symptoms after the ESI included pain in the RLE. The next inquiry, then, is whether these symptoms were caused by the ESI, followed by whether there was fault on the part of VA. In regard to right lower extremity nerve damage, a June 2015 VA examiner noted that there is no clinical evidence to support a contention that there is nerve damage related to the Veteran's ESI. The VA examiner noted that the Veteran's examination showed no objective evidence of nerve damage and findings were confined to subjective symptoms of pain. He noted that reflexes and strength were normal before and after the procedure; PT reports show no changes in complaints of pain for over a month following the procedure; and the record lacks evidence of objective findings to indicate nerve damage following the procedure. The examiner opined that it is unlikely the claimed disability was caused or aggravated by the ESI and further opined that there was no fault on the part of VA treatment providers in performing the procedure. Indeed, the record shows the Veteran was advised of the risk of worsening pain or nerve damage, which he has not denied. However, the record does not show that he has nerve damage. Accordingly, as he was advised of the risks, does not show objective evidence of nerve damage, and there was no carelessness, negligence, lack of skill, error in judgment, or fault on the part of VA treatment providers when rendering the treatment, Section 1151 benefits are not warranted for his symptoms. The Veteran has argued that Section 1151 benefits should be awarded based on the fact that his right leg started jumping during the procedure. The record shows that the procedure was completed without complication or complaint voiced by the Veteran and further shows that the claimed worsening in the RLE was not reported for over a month after the procedure. Physical therapy notes in the interim show the Veteran reported improvement. Additionally, though "nerve damage" is a foreseeable complication of the procedure provided to the Veteran, and was included in the possible complications in the informed consent signed by the Veteran, there is no indication that nerve damage occurred. The Board acknowledges the Veteran's belief that he sustained nerve damage as a result of the ESI; but the Veteran has not been shown to have the training or the expertise to competently provide an opinion as to the cause of his RLE pain, and no argument or medical evidence has been received that contradicts or outweighs the VA examiner's opinion that the there was no negligence or fault on the part of VA that resulted in these symptoms. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). New and Material Evidence: Headaches A claim on which there is a final decision may be reopened if new and material evidence is presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the January 1984 decision includes service treatment records, VA treatment records and lay statements from the Veteran. The Board finds the evidence submitted since January 1984 is new and material with regard to the Veteran's claimed headaches. The RO denied service connection due to the fact that CT scans and x-rays were negative for any abnormal findings. Evidence of record included service treatment records and VA treatment records. The Veteran testified at his September 2017 hearing that his headaches began during service after a motor vehicle accident. He reported continuity of symptoms since service and is currently receiving care for his condition at a VA medical center. Based on the Veteran's testimony, the Board concludes that new and material evidence to reopen the claim for service connection for headaches has been received, and the decision of January 1984 is reopened. The Veteran has fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury where nexus evidence establishes a connection between the service-connected disability and the current disability. 38 C.F.R. § 3.310(a) (2016); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). For a chronic disability to be established through continuity of symptomatology, the claimant must demonstrate (1) evidence that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regarding the Veteran's headache disability, STRs show that he was involved in a MVA in June 1973 in which he hit the left side of his head. He complained of headaches on scene and later complained of headaches lasting more than a week accompanied by nausea. In April 2005, a physician noted that the Veteran suffered from headaches with blurred vision and nighttime nausea. The Veteran uses Topiramate to control his headaches. A June 2010 neurologist opined that the Veteran suffered from post-traumatic migraines with occasional visual aura that were more likely than not related to an MVA he was involved in service. The Board finds the medical opinion and the Veteran's credible lay statements are of significant probative value and the most persuasive evidence with regards to the question of whether his current headaches are chronic and continuous since service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for headaches is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER Reopening of the claim for service connection for headaches is granted. Service connection for headaches is granted. Compensation under the provisions of 38 U.S.C. § 1151 for nerve damage is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs