Citation Nr: 18142226 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-24 634A DATE: October 15, 2018 ORDER New and material evidence not having been received, reopening of service connection for a low back disorder is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a left rotator cuff tear (claimed as left rotator cuff injury) is denied. FINDINGS OF FACT 1. A January 2010 Board decision denied reopening of service connection for a low back disorder on the basis that the evidence received was not new and material, as it did not show the current low back disorder was etiologically related to service, that is, was not incurred in or aggravated by service. 2. A June 2011 Board decision denied clear and unmistakable error (CUE) in the January 2010 Board decision, and affirmed the determination of the January 2010 Board decision. 3. The January 2010 and June 2011 Board decisions were final when issued. 4. Evidence received since the January 2010 Board decision is either duplicative or cumulative of evidence previously considered or does not relate to a previously unestablished fact of nexus to service that is necessary to substantiate the claim for service connection for a low back disorder. 5. The left rotator cuff tear, with pain, difficulty with overhead lifting and painful limitation of motion, positive impingement sign, and rotator cuff weakness, preexisted VA medical treatment. 6. There was no additional left shoulder disability following VA treatment. 7. The left rotator cuff tear, with pain, difficulty with overhead lifting and painful limitation of motion, positive impingement sign, and rotator cuff weakness, was not caused by VA hospitalization, medical or surgical treatment, submission to an examination, or the pursuit of a course of vocational rehabilitation. 8. The left rotator cuff tear is not due to negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, to include failure to obtain informed consent before the surgical procedure. 9. The left rotator cuff tear was not caused by an unforeseen event. CONCLUSIONS OF LAW 1. The January 2010 Board decision denying reopening of service connection for a low back disorder was final when issued; new and material evidence has not been received to reopen service connection for a low back disorder. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156, 20.1100. 2. The criteria for compensation benefits under 38 U.S.C. § 1151 for claimed additional disability of left rotator cuff tear have not been met. 38 U.S.C. §§ 1151, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.154, 3.159, 3.361, 3.800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from July 1977 to December 1977, and from November 1979 to November 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an July 2014 rating decision from the Regional Office (RO), which denied reopening of service connection for a low back disorder, denied service connection for a right arm disorder, and denied compensation under 38 U.S.C. § 1151 for a left rotator cuff tear. On the June 2016 substantive appeal, in section eight, the Veteran checked the box “A” indicating that, having read the April 2016 statement of the case (SOC), he was only appealing the issues specified, and wrote that he was appealing “1. lower back, and 2. left shoulder.” The Veteran also checked the box “B” to indicate that he wanted to appeal all the issues listed on the April 2016 SOC. See June 2016 VA Form 9. Although both box “A” and box “B” were marked on the substantive appeal, considering the language and context of the Veteran’s written expressions, the Board finds the Veteran’s written itemization of the issues being appealed to be the most persuasive as to his intent to appeal only the lower back and left shoulder issues. As the Veteran did not include service connection for the right shoulder on the itemized list of issues being appealed, the claim is not on appeal to the Board and will not be adjudicated herein. The Veteran initially requested a travel Board hearing on the June 2016 substantive appeals; however, in written correspondence submitted August 2017, the Veteran withdrew the hearing request. 38 C.F.R. § 20.704(e). The Board finds that the duties to notify and assist the appellant in this case have been fulfilled. Neither the appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. Whether Reopening Service Connection for a Low Back Disorder Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. “[N]ew evidence” means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. at 117-118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened. Once the case is reopened, the presumption as to the credibility no longer applies. Id at 513. In this case, a January 2010 Board decision denied reopening of service connection for a low back disorder on the grounds that the evidence received since the prior final July 1984 rating decision was not material, as it did not show the current low back disorder was etiologically related to active service; that is, the additional evidence did not show that the low back disorder was incurred in or aggravated by service (i.e., worsened beyond a natural progression during service). A June 2011 Board decision denied CUE in the January 2010 Board decision (38 C.F.R. §38 U.S.C. § 7111), affirming the determination of the January 2010 Board decision that denied reopening service connection for a low back disorder. In January 2010 and June 2011, the Veteran was notified of the Board decisions and provided notice of procedural and appellate rights. Because the Veteran did not appeal the January 2010 and June 2011 Board decisions to the United States Court of Appeals for Veterans’ Claims (Court) within 120 days of that notice, the Board decisions became final as to the evidence then of record when issued, and are not subject to revision on the same factual basis. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. After reviewing the evidence received since the January 2010 and June 2011 Board decisions, the Board finds that the evidence does not qualify as new and material evidence to reopen service connection for a low back disorder. In recent lay statements the Veteran reasserted that the low back was injured during basic combat training in 1977 during the first period of active service, and that he was treated for chronic low back pain and changed his military occupational specialty to medical supply specialist due to reinjury during the second period of active service from 1979 to 1983. See May 2013 Report of General Information, June 2016 VA Form 9, August 2017 representative brief. These statements are not new or material evidence because the substance of such statements was previously asserted and considered during the prior appeal periods, and these theories of service connection were denied in the final July 1984 rating decision and the final January 2010 and June 2011 Board decisions. The new evidence received since the January 2010 and June 2011 Board decisions still does not have any tendency to show that the current low back disorder is etiologically related to active service, that is, that it was incurred in or aggravated by service (worsened beyond a natural progression during active duty service). VA outpatient records provide no competent medical evidence of a nexus between the current low back disorder and service, as they only show the current nature and treatment of the low back disorder. See April 2007, April 2010, March 2013, July 2015, January 2016 VA treatment records. The August 2017 representative brief reflects that the Veteran provided a statement from Dr. Feldman dated May 12, 2006 that is new and material evidence; however, Dr. Feldman’s statement is not new as it was submitted during that prior appeal period during which reopening of service connection for a low back disorder was denied in the final January 2010 Board decision, and affirmed in the final June 2011 Board decision. Moreover, Dr. Feldman’s statement is not material because it only relates to the status of the low back disorder and treatment rendered since 2000 (current disability element), but does not indicate that a current low back disorder was etiologically related to active service (nexus element). See May 2006 private treatment record. For these reasons, the Board finds that the additional evidence received since the January 2010 Board decision is not new and material evidence; therefore, service connection for the previously denied low back disorder cannot be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Compensation under 38 U.S.C. § 1151 for Left Rotator Cuff Tear The Veteran contends that he was treated at the Jackson VA Medical Center (VAMC) since 2008 and that the left rotator cuff injury is due to negligence by the Jackson VAMC. See May 2013 Lay Statement. Compensation under the provisions of 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran’s willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by VA either by a VA employee or in a VA facility; and (3) 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 hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. In determining whether a veteran sustained additional disability, VA compares his or her 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 has stopped. 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 or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, 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). Additional disability or death caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). 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 disability or death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Determinations as to 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 an additional disability 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. See 38 C.F.R. § 3.361(d)(2). After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence demonstrates that a left rotator cuff tear, with pain, difficulty with overhead lifting and painful limitation of motion, positive impingement sign, and rotator cuff weakness, preexisted VA treatment; that a left rotator cuff injury was not caused by VA hospitalization, medical or surgical treatment, submission to an examination, or the pursuit of a course of vocational rehabilitation; and that a left rotator cuff injury was not caused by an unforeseen event. The Veteran contends that a left rotator cuff injury is due to negligence by the Jackson VAMC, but does not indicate with any specificity when and what type of VA treatment allegedly caused left rotator cuff injury, what the negligence was, or what additional disability resulted from VA treatment. Notably, in March 2014 and January 2016 letters, VA requested additional details from the Veteran regarding the date and nature of VA treatment that allegedly caused a left rotator cuff injury, as well as what treatment from VA is alleged to have involved negligence, including the date and type of injury that resulted in additional disability. The Veteran did not respond to the requests for additional information. The Board notes that a letter from Dr. Feldman dated May 2006 indicates treatment for shoulder pain with injections in October 2005, prior to any VA treatment. The Veteran presented to VA in April 2007 with complaints of left shoulder pain and difficulty with overhead activities and lifting, having last undergone injections approximately three to six months prior. Upon examination there was painful limitation of motion in the left shoulder with a positive impingement sign and rotator cuff weakness. Diagnosis was left rotator cuff weakness or impingement syndrome, for which pain medications such as Lortab was prescribed and injections were recommended. The record reflects that from May 2007 to March 2009 the left shoulder pain was managed with pain medications such as Morphine, Lortab, Etodolac, and Prilosec, from which the Veteran reported pain relief and denied any side effects. Additionally, the Veteran was treated with a series of left shoulder injections without complications, from which the Veteran reported decreased pain. See, e.g., May 2007, July 2007, February 2008, May 2008, July 2008, February 2009 VA treatment records. VA physicians also conducted work up of the Veteran’s left shoulder symptoms during this time, which included A May 2008 x-ray of the left shoulder that showed degenerative changes in the acromioclavicular (AC) joint and possible underlying rotator cuff disease, and a March 2009 x-ray and MRI of the left shoulder, which revealed a near complete tear of the supraspinatus tendon with associated supraspinatus muscle atrophy. See May 2008, July 2008, March 2009 service treatment records. Notably, during the February 2009 orthopedic surgery consultation, the Veteran reported that he previously had an MRI of the left shoulder and had been diagnosed with a left rotator cuff tear in the past, but that the left shoulder tear had not been addressed surgically. In terms of reporting ongoing symptoms of a disability, a veteran is competent to report symptoms and, as in this case, is competent to relate a diagnosis told to them by a doctor. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In light of updated radiographic imaging, alternative treatments were discussed, including physical therapy, continuing injections and medications, or attempting a rotator cuff repair with resection of the distal clavicle and subacromial decompression. Having discussed the standard complications of surgery, including no guarantee of improvement and a long period of rehabilitation, the Veteran elected to pursue surgery. See March 2009 VA treatment record. The Veteran was scheduled for left shoulder surgery twice between 2009 and 2010, and cancelled on both occasions. See April 2009, November 2009, December 2009, June 2011 VA treatment records. The Veteran finally underwent left shoulder surgery under anesthesia in September 2011. The operative report reflects that a massive chronic rotator cuff tear was noted intraoperatively, such that there was only a minor amount that could be done. Some of the anterior rotator cuff was repaired to the humeral head to cover up the bicep tendon, which would possibly help with pain, though would not likely have any outcome in terms of function. The anterior distal acromion was also removed for decompression, after which the deltoid was repaired back to the acromion. The wound was closed with Steri-strips, sterile dressing was placed, and the left upper extremity was placed in a sling. The operative report reflects that the that there was minimal blood loss during the surgical procedure, the Veteran awakened without complications, and was transferred to the post-anesthesia care unit in stable condition. See September 2011 VA treatment record. Initial post-operation visits between September 2011 and December 2011 reflect no complications, as the incision was well healed and there was no swelling or inflammation, and there was good motor and sensory strength. See September 2011, December 2011 VA treatment records. A March 2012 treatment note reflects that the Veteran initially returned for post-operation visits, but had not returned for additional post-operation follow up in the past few months, although appointments were scheduled. There remained no signs of infection, inflammation, or swelling on examination, but prognosis for satisfactory improvement was deemed guarded based on diagnosis and noncompliance. February 2013 imaging continued to show large tear in the supraspinatus tendon, which was noted prior to surgery and deemed irreparable during surgery. Although the Veteran desired additional surgical intervention, VA physicians advised that he was not a candidate for additional surgical intervention because additional benefit from surgery was unlikely. Pain management was offered as well as a referral to Houston VAMC for additional surgical consultation. See April 2012, February 2013 VA treatment records. VA treatment records dated 2013 through 2016 continued to show that the left shoulder manifested as symptoms of painful limitation of motion that was managed with injections and medications with no evidence of complications or side effects. See, e.g., March 2013, July 2013, September 2014, March 2015, October 2015, January 2016 VA treatment records. Overall, the record reflects that the Veteran has a history of preexisting left rotator cuff tear with painful limitation of motion that was treated with injections prior to VA treatment, as reflected by the contemporaneous medical history the Veteran reported while receiving treatment in February 2009 and the May 2016 private treatment record. There is no evidence of additional injury to the pre-existing left rotator cuff tear while receiving VA treatment, or additional left shoulder disability, or unforeseen event, and the Veteran does not contend with any specificity what injury or additional disability may have been caused by VA treatment or that any unforeseen event occurred. The record reflects no worsening of the left rotator cuff following VA treatment, to include surgery, as the pre-existing rotator cuff tear, which was noted to be massive prior to surgery, remained large after surgery and continued to manifest as symptoms of pain and limitation of motion, which are the very symptoms present prior to surgery. On the question of whether the Veteran gave informed consent for VA treatment rendered, to include surgery, the record reflects that informed consent was obtained on more than one occasion prior to VA proceeding with surgical intervention on the left shoulder. March 2009, December 2009, and June treatment notes and the September 2011 operative report collectively reflect that alternatives to surgery were discussed including continuing injections, physical therapy, or nonsteroidal medications. The VA physician explained operative risks, benefits, indications, and complications to the Veteran in full detail which included but where not limited to: “infection, surgery not to patient’s satisfaction, need for additional surgery, neurovascular damage, possibility of retear, long rehab time which requires the patient’s full cooperation, anesthetic risks, myocardial infarction (MI), pulmonary embolism (PE), deep vein thrombosis (DVT), pulmonary complications, etc., even death.” The treatment note reflects that the patient verbalized understanding of the risks associated with surgery to the left shoulder and opted to proceed with surgery. See March 2009, December 2009, June 2011, September 2011 VA treatment records. As such the record reflects that lack of improvement and even worsening of the left shoulder rotator cuff tear were foreseeable risks of left shoulder surgery for which, informed consent was obtained. The record reflects that informed consent was also obtained for the injections provided throughout the course of VA treatment. The record reflect that the risks associated with injections was explained prior to the procedures, which included risk of bleeding, infection, nerve damage, muscle damage, and tendon rupture. No bleeding or complications are evidenced following any injection procedure, as the Veteran was consistently noted to be stable and, contrary to evidence of additional left shoulder disability, even reported decreased pain following the procedures by VA. See, e.g., May 2007, February 2009, April 2010, August 2011, July 2013, March 2015 VA treatment records. The record reflects that informed consent was also provided for long term opioid use for pain management. The Veteran has consistently reported improved ability to perform daily activities with pain medications and denied any side effects from medications. See e.g., February 2008, November 2008, September 2014, October 2015 VA treatment records. The Board has considered the Veteran’s vague contention that a left rotator cuff injury was caused by negligence at the Jackson VAMC. As noted above, in terms of reporting ongoing symptoms of a disability, a veteran is competent to report symptoms and, in some cases, laypersons may relate a diagnosis told to them by a doctor, to include the Veteran’s contemporaneous report (while seeking VA outpatient treatment) of a pre-existing rotator cuff tear diagnosis. See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331; Davidson, 581 F.3d at 1316. However, the etiology of a left rotator cuff tear is a complex medical question that requires evaluation of internal processes that requires medical observation and testing to diagnose, which is outside the realm of common knowledge of a lay person. Thus, while the Veteran is competent to relate left shoulder symptoms experienced at any time, under the facts of this case that include preexisting symptoms and diagnosis of rotator cuff tear, the Veteran is not competent to opine as to whether a left rotator cuff tear was due to any deficiency on the part of VA treatment. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the “requisite medical training, expertise, or credentials needed to render a diagnosis” and that their testimony “could not establish medical causation nor was it a competent opinion as to medical causation”); Kahana, 24 Vet. App. at 438 (holding that ACL injury is “medically complex” for lay diagnosis); Savage v. Gober, 10 Vet. App. 488, 496-97 (1997) (requiring that a veteran present medical nexus evidence relating currently diagnosed arthritis to in-service back injury); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (holding that a veteran is not competent to relate currently diagnosed chondromalacia patellae or degenerative joint disease to the continuous post-service knee symptoms). For these reasons, the Board finds that the weight of the evidence of record demonstrates that the current left rotator cuff tear pre-existed VA treatment and is not actually or proximately any VA medical or surgical treatment, hospitalization, submission to an examination, or pursuit of a course of vocational rehabilitation. The evidence of record reflects that lack of improvement of the left rotator cuff tear, or even worsening of the left rotator cuff tear, is a well-known risk of surgical intervention and injections. Further, the evidence reflects that there were no complications at the time of surgery, injections, and no side effects reported from the opioid pain medications prescribed. For these reasons, the Board finds that a preponderance of the evidence is against the claim for VA benefits under 38 U.S.C. § 1151 for left rotator cuff tear (claimed as left rotator cuff injury), and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel