Citation Nr: 1801919 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 05-09 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating greater than 10 percent for radiculopathy of the right lower extremity. 2. Entitlement to a rating greater than 10 percent for radiculopathy of the left lower extremity. 3. Entitlement to a rating greater than 10 percent for a chronic right hip strain. 4. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety, bipolar disorder, psychosis, schizoaffective disorder, and posttraumatic stress disorder (PTSD), to include entitlement to a temporary total disability evaluation based on hospitalization. 5. Entitlement to compensation under 38 U.S.C.A. § 1151 for a neck disability, including degenerative disc disease, claimed as due to an assault occurring at a VA facility in 1995. 6. Entitlement to total disability based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Charles W. Boohar, Jr., Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Given that the Veteran has been diagnosed with multiple psychiatric conditions, the RO appropriately expanded the Veteran's claim from one for PTSD alone to one for any psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In December 2015, the Board re-opened the Veteran's claim for service connection for a psychosis, and now, under Clemons, also includes it as part of the Veteran's claim for service connection for a psychiatric disability. In June 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In December 2015, the Board remanded the case to the RO for additional development. The Board notes that the December 2015 remand included an additional issue: entitlement to an effective date earlier than July 31, 1995 for the award of service connection for left knee degenerative joint disease. The Veteran had filed a statement disagreeing with July 31, 1995 as the effective date for service connection for his left knee disability, asserting it should be earlier. As directed by remand, the Agency of Original Jurisdiction (AOJ) issued a statement of the case and the Veteran filed a timely VA Form 9, where he requested a videoconference hearing before the Board. To date, a videoconference hearing on the earlier effective date issue has not occurred. As such, no action will be taken by the Board at this time, and the issue of entitlement to an earlier effective date for the award of service connection for a left knee disability will not be addressed by the Board until after the Veteran's requested hearing. While the May 10, 2017 supplemental statement of the case included the issue of entitlement to an evaluation in excess of 40 percent for a lumbar spine disability, that issue was decided by the Board in December 2015 and is not currently in appellate status. Thus, further discussion regarding that issue is not necessary. As will be discussed below, in December 2015 the Board granted several increased ratings. The record does not reflect any rating decisions effectuating the grants, which is necessary to ensure the Veteran is receiving the correct amount of compensation. Action should be taken in this regard. The issues of entitlement to increased ratings for radiculopathy of the left and right lower extremities and chronic right hip strain, as well as entitlement to service connection for an acquired psychiatric disability, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran does not have an additional neck disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA while he was a patient at a VA medical center (VAMC) in September 1995. CONCLUSION OF LAW The criteria for disability compensation under 38 U.S.C. § 1151 for an additional neck disability as a result of treatment while a patient at a VAMC in September 1995 have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran's prior attorney requested VA obtain the written VA policy in effect in September 1995 regarding supervision of in-patients to a VAMC mental health ward. In addition, the records of another patient were requested to determine if VA had prior knowledge before September 1995 that the other patient could be violent. While there appears to be some documentation addressing these requests, the Board finds further action by VA is not necessary. For the reasons discussed below, the Board finds that the Veteran did not suffer an additional disability due to an assault by the other patient. The requested evidence would not address whether the Veteran has an additional disability. Neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). When a veteran suffers additional disability as the result of surgical or medical treatment by VA, disability compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was caused by VA treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical or medical treatment; or the additional disability was not reasonably foreseeable. 38 U.S.C. § 1151(a). Under 38 C.F.R. § 3.361, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, it must be shown that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider. A claim based on additional disability due to surgical or medical treatment must meet the causation requirements. To establish causation, the evidence must show that VA's treatment caused the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c). VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose or 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. Whether the proximate cause of an additional disability is an event not reasonably foreseeable is 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 informed consent. 38 C.F.R. § 3.361(d). The Veteran seeks compensation pursuant to 38 U.S.C.A. § 1151 for a neck disability he claims to have incurred after he was assaulted by another patient while an in-patient at a VAMC in September 1995. The records reflect that another patient entered the day room and changed the TV channel over the objections of the other patients. He then went towards the back of the room and as he passed the Veteran, he struck the Veteran on the back of the neck. He also placed the Veteran in a headlock. The subsequent police report stated the Veteran suffered minor injuries to the back, neck, right shoulder, and right knee. He was treated with medication, physical therapy, and other therapy. September 1995 X-rays, taken after the attack, demonstrated degenerative space changes at C5-C6 and C6-C7. There was no evidence of a fracture. Further, the X-ray report indicates that findings were not significantly changed from the July 1995 X-rays. The Board notes July 1995 cervical spine X-rays showed degenerative disc disease and degenerative osteoarthritis of the middle and lower cervical spine with reversal of the normal lordotic curvature. The Veteran recalls the attack differently. He states he lost consciousness and was treated with traction for at least 4 months and possibly a year. He also asserts that the other patient had just been admitted to the mental health unit and VA policy required placing him in a locked ward until it was determined he was not violent. In addition, the other patient had a known history of violence. He contends VA was negligent in its supervision of the other patient, which led to the assault. In a July 1996 VA examination, X-rays demonstrated diffuse degenerative disc disease and degenerative osteoarthritis. The VA examiner suspected what happened during the event was that the Veteran impinged the C-7 nerve root with some of his arthritic spurs; however, the examiner ordered a CT scan to rule out herniated cervical disc. A CT scan that same month demonstrated spinal canal stenosis and foraminal narrowing. In addition there was degenerative disc disease with disc herniation at C4-C5 and probably central disc herniation at C3-C4. In September 1996, a VA examiner noted the Veteran had been involved in multiple fights and skirmishes since separation. He concluded the Veteran's cervical spine disability was not due to service, but probably related to heavy work as well as a number of assaults. The Board interprets the examiner as not including the September 1995 assault as a partial cause of the Veteran's cervical spine disability as the examiner specifically noted comparison of cervical spine X-rays before and after the assault showed no change and the Veteran had long standing cervical spine stenosis. A November 2005 CT scan demonstrated degenerative disc disease resulting in canal stenosis and neuroforaminal stenosis. October 2005 X-rays were interpreted as degenerative disc disease of the cervical spine without evidence of fractures, or subluxation. In another set X-rays, while the radiologist found overall moderate degenerative disc disease of the cervical spine from C4 to C7, the radiologist also made an incidental finding of an old C7 spinous process fracture. In September 2009, a VA examiner reviewed the Veteran's records and concluded that the Veteran did not have an additional disability resulting from the attack by the other patient. He noted that the records at the time noted a minor injury to the neck and a post-assault X-ray remained unchanged compared to X-rays prior to the incident. Those films demonstrated the Veteran already had degenerative disc disease. Further, the Veteran received physical therapy and occupational therapy, resulting in improvement by discharge without mention of residuals when the Veteran was discharged. He concluded the assault did not cause the degenerative disc disease of the cervical spine because of the police report indicating a minor injury and unchanged findings on the X-rays. In July 2013, a cervical spine MRI revealed multilevel advanced disc disease along with multilevel neuroforaminal stenosis. In March 2015, the Veteran underwent surgery for cervical spinal fusion. In October 2016, another VA examiner concluded based upon review of the records, as well as the earlier neurology opinion offered in September 2009, the unchanged x-rays after the assault, and police reports indicating minor head and neck injury, it would be considered less likely as not (less than 50 percent probability) that the Veteran's current neck condition had been aggravated beyond its natural course based upon review of the records as detailed. Upon review of the record, the Board finds the preponderance of the probative evidence is against the claim. The Veteran argues that had VA followed its own procedures, the other patient would have been on lockdown the first 48 hours and not been able to access the day room where he assaulted the Veteran. Absent the assault, the Veteran believes he would not have a current cervical spine disability. Here, there is no question that the Veteran was assaulted by another patient at a VAMC. However, the threshold question in this 38 U.S.C. § 1151 claim is whether the Veteran suffered additional disability due to the assault. Only then can the Board reach the question of whether VA negligence played a role in causing the assault. After a careful review of the evidence, the Board concludes that the Veteran has not suffered additional disability due to the assault. The evidence is clear that degenerative disc disease and degenerative osteoarthritis of the neck predated the assault, as shown by X-rays in July 1995. The most probative medical opinions also indicate that it is less likely than not that the assault caused or aggravated the Veteran's current neck disability. On this point, the Board finds the September 2009 and October 2016 opinions to be the most probative, as they were made by medical professionals after review of the relevant evidence and are supported by clear rationales that are consistent with the evidence of record. Specifically, the examiners relied on the police report showing minor neck injury and unchanged X-rays from before and after the assault. While in July 1996 the VA examiner suspected that the Veteran impinged the C-7 nerve root with some of his arthritic spurs, further testing was ordered to rule out herniated disc. That testing did in fact confirm the presence of herniated discs. The September 1996 examiner's opinion suggests the assault at the VAMC did not cause or aggravate a neck disability. As noted earlier, the Veteran must have an additional subsequent disability to establish a claim under 38 U.S.C.A. § 1151(a). See also 38 C.F.R. § 3.361(c). There is no probative medical opinion indicating the Veteran's neck disability was caused by the September 1995 assault and/or aggravated beyond its natural progression. The Board finds the medical opinions of the VA physicians persuasive evidence against the claim, and to be most probative in this matter. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion reached in the opinion). While the Veteran believes that the severity of his current degenerative disc disease is related to VA's alleged failure to properly supervise a patient, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and progression of degenerative disc disease are matters not capable of lay observation, and require medical expertise to determine. Thus, the Veteran's own opinion regarding the etiology or status of his current neck disability is not competent medical evidence. The Board finds the medical opinions of record to be significantly more probative than the Veteran's lay assertions. The Board thus concludes that degenerative disc disease that has progressed to the need for spinal fusion surgery was not the result of the assault by the other VA patient in September 1995. Therefore, the Board finds there is no need to discuss whether the assault resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for a neck disability, claimed as due to an assault occurring at a VA facility in 1995, is denied. REMAND The issues of increased rating for the left and right lower extremities and chronic right hip strain, and service connection for an acquired psychiatric disability were all remanded in December 2015 in part to afford the Veteran with VA examinations. It appears examinations were scheduled in October 2016, but both the VAMC and the RO attempted to notify the Veteran only by telephone. These efforts were unsuccessful and the Veteran has asserted he never learned of the scheduled examinations because he did not receive a written letter or other notification of the examination. As noted, the Board remanded the Veteran's claims to provide the opportunity to provide more evidence and an examination regarding his claims. The United States Court of Veterans Affairs (Court) held that a remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. Consequently, the Board finds, to comply with the prior remand requirements and in the interest of fairness and due process, that another remand is required in order to further develop the Veteran's claims. A written notice of the examination must be provided to the Veteran at the current address of record. The Board further finds that the issue of TDIU must also be remanded as the issue is inextricably intertwined with the remaining claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Also of note, in December 2015 the Board granted increased ratings for left knee instability and lumbar spine disability. The record does not reflect any rating decisions effectuating the grants, which has an impact on the Veteran's claim for a TDIU. On remand, a rating decision should be issued effectuating the grants by the Board in December 2015. Accordingly, to ensure due process, the case is REMANDED for the following action: 1. Issue a rating decision effectuating the increased ratings granted by the Board in December 2015. 2. Obtain relevant VA treatment records related to the issues on appeal that are not already of record dating from June 2016 to the present. 3. Schedule the Veteran for a VA neurological examination to assess the existence and severity of any neurological abnormalities that are associated with his service-connected lumbar spine disability. The Veteran's claims file should be made available to, and reviewed by the examiner. Written notice of the time and place of the examination must be provided to the Veteran at the current address of record Upon review of the record, and after examination of the Veteran, the examiner should specifically identify any neurological abnormalities at least as likely as not (50 percent or greater probability) associated with the Veteran's lumbar spine disability, to include related bowel or bladder dysfunction. In providing a response, the examiner should comment upon the history of incontinence problems described by the Veteran at the September 2010 VA examination. The examiner should also provide a full report assessing the severity of the Veteran's service-connected left and right leg lower extremity radiculopathy. 4. Schedule the Veteran for a VA orthopedic examination to assess the severity of his service-connected right hip disability. Written notice of the time and place of the examination must be provided to the Veteran at the current address of record. The Veteran's claims file should be made available to, and reviewed by the examiner. Particular attention should be paid to the level of function impairment, if any, that may be caused by pain, weakness, and incoordination. The examiner should specifically comment on whether, in his or her opinion, the Veteran is providing his best efforts at the examination. 5. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of his current psychiatric disabilities. Written notice of the time and place of the examination must be provided to the Veteran at the current address of record The Veteran's claims file should be made available to, and reviewed by the examiner. Upon review of the record, and examination of the Veteran, please respond to each of the following: a.) Please clarify the Veteran's current mental health diagnoses. If PTSD is identified, the examiner should specify the specific stressor event(s) to which PTSD is attributed. The examiner is instructed that the Veteran did not serve in Vietnam during the Vietnam Conflict and did not serve outside the U.S. during his period of active service. b.) For each identified psychiatric disability other than PTSD, please indicate whether it is at least as likely as not (50 percent or greater probability) that the disability was incurred in, or is otherwise related to his period of active duty service. If any of the Veteran's psychiatric disabilities were present during the period under review (March 2003 to the present) but have since resolved, please also provide an opinion as to whether any such resolved disability was at least as likely as not incurred in, or was otherwise related to his period of active service. See McLain v. Nicholson, 21 Vet. App. 319 (2007). c.) Notwithstanding the responses above, for each identified psychiatric disability, please also indicate whether it is at least as likely as not that the disability was (i) caused or (ii) aggravated beyond its natural progression by pain symptoms associated with his other service-connected disabilities, which include disabilities of the right and left knee, the lumbar spine, the right hip, and bilateral lower extremity radiculopathy. d.) If the Veteran has a current psychosis, please identify whether he experienced the psychosis within one year after his discharge from service in July 1970. The examiner should provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 6. After the above development has been completed, the Veteran's claims must be re-adjudicated. If any claim on appeal remains denied, the Veteran and his attorney must be provided a supplemental statement of the case. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs