Citation Nr: 18147301 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-30 99A DATE: November 2, 2018 ORDER The claim of entitlement to service connection for a chronic respiratory disease, to include chronic obstructive pulmonary disease (COPD) is denied. The claim for entitlement to benefits under 38 U.S.C. § 1151 for residuals of lumbosacral surgery is denied. FINDINGS OF FACT 1. The Veteran’s low back pain and lower extremity weakness was not caused or aggravated due to VA care, or lack of proper care, during VA lumbosacral surgery in November 2008. 2. The Veteran served in Vietnam and is presumed to have been exposed to herbicides. 3. Chronic respiratory disease is first shown many years after the Veteran’s military service and his service in Vietnam, as well as after many years of smoking tobacco products; and the Veteran’s current chronic respiratory disease, variously diagnosed as asthma, bronchitis, and COPD is unrelated to his military service and inservice herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to benefits under 38 U.S.C. section 1151 for residuals of lumbosacral surgery have not been met. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2017). 2. The criteria for service connection for a chronic respiratory disease, to include COPD, have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1964 to October 1968; and from June 1969 to October 1973. He served in Vietnam from July 1967 to October 1968 and from June 1969 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the “Decision” portion of the Narrative Summary of that rating decision, only one issue was listed, which was entitlement to compensation under 38 U.S.C. § 1151. Nonetheless, that rating decision addressed multiple other issues, all of which were entitlement to higher ratings for service-connected disabilities. It did not address entitlement to service connection for COPD, or for any pulmonary or respiratory disorder. However, the Veteran was notified of the April 4, 2012, rating decision by an RO letter of April 16, 2012, which did address service connection for COPD, claimed as lung and breathing problems, and stated that it was denied on the basis that while VA records showed that it was currently diagnosed, the service treatment records (STRs) were negative for such condition, and there was no medical evidence that COPD was related to service. The Notice of Disagreement (NOD) as to the April 4, 2012, rating decision was received on April 12, 2013, and addressed both issues. Subsequently, the July 2015 Statement of the Case (SOC) also addressed both issues, and the appeal of both issues was perfected by the filing of a VA Form 9, in September 2015. 1. The claim for entitlement to benefits under 38 U.S.C. section 1151 for residuals of lumbosacral surgery Background An August 22, 2008, VA outpatient treatment (VAOPT) record noted that the Veteran reported that he was in constant pain, and unable to function. He felt that he had a tough decision in considering surgery because there was a possibility that it might cause paralysis of his right leg. A December 15, 2009, VA neurology examination reflects that there was a presumptive or differential diagnosis of a schwannoma based on a March 2008 MRI, but a second MRI in October 2008 suggested that the finding from the first MRI was likely a disk fragment and not a tumor, but a 6 month follow-up had been suggested. Due to his symptoms, the Veteran had had surgery and apparently no tumor was found. The operative report did not show any tumor, benign or malignant. On December 9, 2011, a VA medical opinion was obtained in conjunction with the Veteran’s claim for compensation under 38 U.S.C. § 1151 for alleged failed VA lumbar surgery. The Veteran’s claim file and electronic medical records were reviewed. The opining VA physician reviewed the preoperative note of the Veteran’s lumbar surgery, which was done on November 20, 2008. The opining VA physician set forth the pertinent factual background, stating that the surgery was exploratory in nature for a possible tumor. No tumor was found during the surgery. The surgical procedure involved the nerve roots and power drilling of bone. The Veteran reported that he had undergone additional procedures on his back, including steroid injections, and a lumbar laminectomy to place a dual lead spinal cord stimulator. He now ambulated with a walker as a result of deterioration of his back condition and had to use continuous medication to control his pain. Preoperatively, the Veteran had been diagnosed with right-sided L5 radiculopathy, with an equivocal picture on an MRI, evoking possible sequestered disk, possible tumor. The operation was a partial hemilaminectomy, at l4-5 with exposure of nerve root and foraminotomy at L4-5, under fluoroscopic control and microscopic technique. The Veteran’s operative diagnosis was foraminal stenosis at L5-S1. The Veteran signed the consent form before this procedure. After satisfactory anesthesia with tracheal tube, he was placed in the chest position using an Andrews frame. A mid-line incision was made overlying L4-5, followed by unilateral right-sided opening in the paravertebral fascia. The lamina of L4-L5 and the yellow ligament in between having been exposed, the microscope was brought in and using different levels of magnification, depending upon the stage of the procedure. Because of hypertrophy of the facet and thickening of the lamina, the power drill was used to thin the bone prior to removal of the yellow ligament. The yellow ligament was then removed piecemeal, using different sized rongeurs. The nerve root at L4-L5 was found tight into the foramen. A left foraminotomy was performed all the way from the take-off of the nerve root to at least 1 cm. inside the foramen. The decompression was quite satisfactory. The nerve root was explored, as well as the take-off at the level of the disk space, and the disk space was palpated. There was disk bulging, but no frank fragment or any sign of a tumor. Subsequently, the incision was closed in layers. Because the Veteran had post-laminectomy syndrome and pain, he had another procedure done for fluoroscopic guided epidural injection that was done on May 5, 2010. The Veteran also signed a consent form before this procedure. The opining VA physician stated that before the Veteran’s lumbar surgery he had signed the consent form on November 3, 2008. The operation was done later in November 2008. As per the consent form, the risks, benefits, and alternatives of surgery were discussed with the Veteran. The risks which were discussed included temporary or permanent leg weakness, loss of sensation, new pain, bladder dysfunction, impotence, spinal instability, infection, bleeding, nerve injury, blood clot, heart attack, allergic reaction to the anesthesia during surgery, pneumonia, hernia, tearing of the dura matter (the outermost membrane covering the brain and spinal cord) with cerebrospinal fluid leak, persistent pain from incomplete decompression, vascular injury, total or partial paralysis, foot drop, as well as symptoms worsening leading to future surgery. The Veteran agreed to the procedure knowing the risks and complications. On the basis of the operative note, during the procedure a power drill was used to thin the bone prior to removal of the yellow ligament and this was a normal procedure in performing lumbar decompression surgery. Unfortunately, the Veteran developed leg weakness and now ambulated with a walker as a result of deterioration of his back condition. The opining physician stated that, as a professional, it was his belief that this was a complication from the decompression surgery of the lumbar spine. Complications could occur at any well-equipped hospital as well as with experienced surgeons. Because of this complication, the VA surgical staff, as well as the anesthetic staff, took appropriate steps in a timely fashion, including epidural injection. The possible tumor was an equivocal radiological diagnosis, and there was nothing wrong with this surgical procedure. Therefore, it was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the department in furnishing the hospital care, medical or surgical treatment. A January 2016 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ) from a private chiropractor reflects that the Veteran had impingement of cervical nerve roots which caused neurological symptoms in his upper extremities. Governing Law and Regulations A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability...were service-connected" if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361(c). 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). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1); Loving v. Nicholson, 19 Vet. App. 69, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). Thus, 38 U.S.C. § 1151 contains two causation elements-an additional disability must not only be "caused by" the hospital care or medical treatment received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." 38 U.S.C. § 1151(a)(1). Analysis The Veteran claims that his bilateral lower extremity weakness and low back pain are the result of his November 2008 VA lumbosacral surgery and that he would not have such increased disability if it were not for VA negligence or error. However, the Veteran is a layperson, and is therefore not competent to provide a medical opinion with respect to the cause of his bilateral lower extremity weakness and low back pain. See 38 C.F.R. § 3.159(a)(1) and (2); Jandreau v. Nicholson, 4923 F.3d 1372, 1376 (Fed.Cir. 2007). The 2011 opinion specifically addressed the proper legal standard and concluded that despite any complications of the 2008 VA lumbosacral surgery, there was no carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault on the part of the VA. Moreover, that opinion cited to the consent form which explained what possible complications could occur and, so, the complications of lower extremity weakness and low back pain were not events which were not reasonably foreseeable. The Veteran’s representative has argued that another medical opinion is needed because the 2011 medical opinion did not address the Veteran’s back and arm complaints. However, that opinion did address the Veteran’s complaints of continued or worsening back pain. As to any arm complaints, there has been no suggestion of how the Veteran’s VA lumbosacral surgery could cause any disability of his upper extremities. Rather, the Veteran is service-connected for peripheral neuropathy of both upper and both lower extremities, as being due to service-connected diabetes mellitus, type II. Moreover, a private chiropractor attributed the Veteran’s symptoms in his upper extremities to cervical nerve root impingement. Consequently, here was no need for the opining VA physician to address the Veteran’s upper extremity symptoms and, so, a remand for an addendum opinion addressing this matter is not needed. As the competent, probative evidence reflects that the Veteran's lower extremity weakness and low back pain were not caused by VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault and was not the result of an event not reasonably foreseeable, entitlement to compensation under 38 U.S.C. § 1151 must be denied. 2. The claim of entitlement to service connection for a chronic respiratory disease, to include COPD VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. This list of diseases does not include COPD, asthma, bronchitis or any chronic respiratory disease. Notwithstanding the presumptive provisions, service connection for claimed residuals of exposure to herbicides also may be established by showing that a disorder resulting in disability is, in fact, causally linked to the exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir.), citing 38 U.S.C. §§ 1113 and 1116, and 38 C.F.R. § 3.303. Establishing entitlement to service connection generally requires having probative (meaning competent and credible) evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are “medically chronic”), if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. 38 U.S.C. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). For a chronic disease to be shown during service or in a presumptive period means that it is “well diagnosed beyond question” or “beyond legitimate question.” Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). However, asthma, bronchitis, and COPD are not listed as diseases which are chronic under 38 C.F.R. § 3.309(a). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Background The report of the October 1964 examination for entrance into the Veteran’s first period of military service noted that he had had childhood asthma; however, on examination his lungs and chest were normal. In an adjunct medical history questionnaire the Veteran reported not having or having had whooping cough, chronic or frequent colds, tuberculosis, shortness of breath (SOB), or pain or pressure in his chest. As to asthma, there is a handwritten notation of “outgrew” and a remark of having had “childhood asthma.” A medical history questionnaire in October 1968, in conjunction with an examination for separation from the Veteran’s first period of service reflects that he reported not having or having had whooping cough, chronic or frequent colds, tuberculosis, shortness of breath (SOB), or pain or pressure in his chest. As to asthma, there is a handwritten notation of “outgrew.” He had once coughed up blood from too much drinking. The examination for entrance into the Veteran’s second period of active service in June 1969 revealed that his lungs and chest were normal. In an adjunct medical history questionnaire the Veteran reported not having or having had whooping cough, chronic or frequent colds, tuberculosis, shortness of breath (SOB), or pain or pressure in his chest. He reported having had asthma at age 6. The September 1973 examination for separation from the Veteran’s second period of service revealed that his lungs and chest were normal. A clinical record from St. Luke’s Hospital in June 1999 reflects that the Veteran had acute bronchitis and asthma. In the Veteran’s original claim in January 2007 for VA disability compensation he reported that he had been exposed to Agent Orange or other herbicides, but did not claim service connection for any respiratory disability. VA outpatient treatment (VAOPT) records show that a September 2007 record noted that the Veteran was advised to discontinue smoking. The assessments included COPD. A CT scan of his lungs was ordered. The September 2007 CT scan of his chest revealed no acute disease in his chest. Yet another record in September 2007 noted that he used over-the-counter (OTC) Primatene mist since he had run out of Albuterol. He had smoked one pack of cigarettes daily for 17 years. In a January 2008 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, and in a typed statement in March 2008, the Veteran reported that in March 1968 he had been a prisoner-of-war (POW) in Cambodia, having been detained for 5 days by the North Vietnamese. Efforts by the RO to verify the Veteran’s status as a POW were unsuccessful. This includes a February 2008 Formal Finding of a Lack of Information to Verify Stressors in Connection with a PTSD claim. A March 2009 VA polysomnography noted that the Veteran had had asthma as a child. He had also had chest pain, nocturnal dyspnea, exertional dyspnea, orthopnea. It was reported that he smoked 1 to 2 packs of cigarettes daily. The study revealed mild obstructive sleep apnea. VAOPT records reflect continued treatment since 2007 for respiratory disability, variously diagnosed as asthma, bronchitis, and COPD. A May 20, 2016, VAOPT record shows that the Veteran reported a history of having had asthma as a child, although he was never treated or hospitalized for it. It was further stated that his “[h]istory of asthma as a child and relatively mild smoking history would [created a suspicion of] asthma as his primary process although may now have chronic obstruction.” The Veteran’s representative has submitted articles from the Internet, including from VA websites. These indicate that the Army Chemical Corps Vietnam-Era Veterans Health Study was designed to learn if some chronic respiratory diseases were related to herbicide exposure. This followed a request by a VA Secretary for research in this matter. One prior study found that the odds ratios of chronic respiratory diseases were elevated, but not significantly for those who served in Vietnam. They were significantly elevated in this Vietnam veterans that actively sprayed herbicides. Researchers were currently analyzing data on COPD. Analysis The Veteran has reported having been a POW. Under applicable regulations, at 38 C.F.R. § 3.309(c) certain diseases will be presumptively service-connected for Veteran’s who were a POW, including those who were POWs for not less than 30 days. However, no chronic respiratory disorder, including COPD, is listed as a disease which may be so presumptively service-connected. The service records are negative for any chronic respiratory disorder, including COPD, although his history of childhood asthma was noted, as was his self-report of having out grown the asthma. The earliest evidence of chronic pulmonary disability does not antedate 1999, a point in time many years after the Veteran’s active service and after many years of smoking tobacco. In fact, the Veteran continued to smoke tobacco for a number of years even after 1999. Nevertheless, he now seeks to attribute his current chronic respiratory disease, variously diagnoses as asthma, COPD, and bronchitis to his military service, and particularly to exposure to herbicides, including Agent Orange. Because he served in Vietnam, his exposure to herbicides, including Agent Orange is conceded. However, chronic respiratory diseases, e.g., asthma, COPD, and bronchitis are not diseases which are presumptively due to inservice herbicide exposure. Nevertheless, service connection may be established by showing that such a disease is causally linked to the exposure. See Combee v, Id. In this case, the articles cited by the Veteran’s service representative do not establish that such a causal link exists. It is asserted that based on these articles, that the case should be remanded for a VA nexus opinion but the articles meet the standard for obtaining a VA nexus opinion in a claim for service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). However, the Board finds that the mere fact that studies are being conducted into the matter does not raise the evidentiary requirement that there be actual evidence suggesting an association between inservice herbicide exposure and the Veteran’s current chronic respiratory disease. Similarly, even if there is an elevated risk of developing a chronic respiratory disease among Vietnam veterans that were directly involved in spraying herbicides in Vietnam, it is neither alleged nor shown that the Veteran in this case was, in fact, actually involved in spraying herbicides in Vietnam. The Veteran has alleged that his inservice herbicide exposure aggravated his pre-existing asthma. However, the STRs are clear that he did not have active asthma at entrance into either period of service. Rather, he affirmatively stated that it had resolved during his childhood. Moreover, the STRs of both periods of service are completely negative for any respiratory disease and, again, the earliest evidence of chronic pulmonary disability does not antedate 1999, a point in time many years after the Veteran’s active service and after many years of smoking tobacco. In other words, other than the Veteran’s sheer allegation of aggravation of his childhood asthma, there is no competent and persuasive evidence that he had any chronic respiratory disease during active and, so, there was no chronic respiratory disease which could have been aggravated. For these reasons, the Board concludes that the preponderance of the evidence is against the claim for service connection for a chronic respiratory disease, to include COPD. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs