Citation Nr: 18159064 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-61 613 DATE: December 18, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for a lumbosacral strain is denied. REMANDED The claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The claim of entitlement to compensation under 38 U.S.C. § 1151 for bilateral lower extremity paralysis secondary to surgical repair of an infrarenal abdominal aortic aneurysm is remanded. FINDING OF FACT All disability attributable to the Veteran’s lumbar spine is unrelated to his service-connected lumbosacral strain. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the service-connected lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and March 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any 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). 2. Entitlement to a disability rating in excess of 10 percent for a lumbosacral strain Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran submitted a claim of entitlement to a disability rating in excess of 10 percent for his low back disability in March 2014. His disability has been evaluated under Diagnostic Code 5237, which evaluates disability of spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. The rating criteria, in pertinent part, provide a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for when forward flexion of the thoracolumbar spine is limited to 30 degrees or less or when favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffens, or aching in the area of the spine affected by residuals of injury or disease). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Note (2). Intervertebral Disc Syndrome is rated under Diagnostic Code 5243 and is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under Diagnostic Code 5243, a 20 percent rating is assigned when the evidence shows incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is provided when the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is warranted when the evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For VA purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. After a thorough review of the record, the Board finds that an increased disability rating is not warranted for the Veteran’s service-connected lumbar spine disorder. The Veteran was afforded a VA examination for his back in June 2014. The examiner noted that the Veteran had recently undergone surgery for an aortic aneurysm and was now a paraplegic from T8 distally. The Veteran had minimal sensation of the lower back with no current lumbar symptoms not related to that surgical incident. In the remarks, the examiner noted that the surgery was entirely unrelated to the Veteran’s service-connected condition from military service. Thus, while impairment of the lumbar spine was noted in the disability benefits questionnaire from June 2014, the examiner noted that the impairment was wholly unrelated to the Veteran’s service-connected lumbar spine disorder. Indeed, the examiner clearly indicated that all impairment was attributable to the Veteran’s postoperative residuals from the February 2014 surgery to treat an abdominal aortic aneurysm, not the Veteran’s service-connected lumbar spine disorder. The evidence of record does not rebut the examiner’s findings. Therefore, the Board finds that an increased disability rating for the Veteran’s service-connected lumbar strain is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) Remand is required to obtain an adequate examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran claims he has PTSD as a result of stressors sustained during his military service. Significantly, VA has already conceded the Veteran’s stressor of witnessing death and injury during his service in the 9th Combat Engineer unit as a medic. VA treatment records document the diagnosis of and treatment for PTSD. See e.g. March 2014 VA treatment note. Diagnoses of depression and anxiety are also of record. Id. At a VA examination in January 2015, the VA examiner diagnosed adjustment disorder with mixed emotional features that include depression and irritability, and alcohol use disorder, in remission. The examiner indicated in the opinion that the Veteran had lately been having depression as a result of having a chronic pain from a neck injury as well as being a paraplegic during the last year from a complication of a surgery. Thus, the examiner opined that it was more probable than not that the Veteran’s current adjustment disorder was related to paraplegia that occurred one year earlier as well as a neck injury which occurred approximately ten year earlier. This examination is inadequate because it does not address the diagnoses of PTSD rendered over the course of VA treatment. The record is thus in conflict, and a new examination should be conducted that addresses the prior diagnoses of PTSD. Further, other diagnoses are of record, including depression and anxiety. These diagnoses should also be addressed. In addition, the evidence raises a secondary theory of entitlement, as some psychiatric disability has been attributed to the Veteran’s paraplegia, for which the Veteran claims entitlement to compensation under 38 U.S.C. § 1151. Thus, while remand is warranted for the Veteran’s claim to obtain an examination on a direct theory of entitlement, the Veteran’s claim of entitlement to service connection for a psychiatric disorder is also inextricably intertwined with the Section 1151 claim, which is remanded below. Accordingly, adjudication of the psychiatric claim should be deferred pending additional development of the Section 1151 claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a “significant impact” upon another, and that impact, in turn, could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). 2. Entitlement to compensation under 38 U.S.C. § 1151 for bilateral lower extremity paralysis secondary to surgical repair of an infrarenal abdominal aortic aneurysm In an August 2004 VA examination for the Veteran’s lumbar spine, X-ray images of the Veteran’s lumbar spine documented an abdominal aortic aneurysm. VA treatment records document that the Veteran underwent surgery to treat the aneurysm in September 2004. Periodic follow-up imaging showed no changes in the Veteran’s repaired aneurysm until an open repair of the abdominal aortic aneurysm was required in October 2011. As evidenced in a February 13, 2014, VA treatment note, the Veteran’s aortic aneurysm had dilated to a larger size and plans were made to conducted branched/fenestrated endovascular repair of the abdominal aortic aneurysm on February 26, 2014, at the University of Washington Medical Center. A March 4, 2014, discharge summary from the University of Washington Medical Center indicates that the Veteran was admitted on February 26, 2014, for treatment of an aneurysm of the abdominal aorta. The aneurysm arose above a prior infrarenal open tube graft repair of AAA done at the VA Medical Center 10 years earlier. The Veteran was documented as providing informed consent to proceed to with investigational branched endovascular treatment for the thoracoabdominal aneurysm in order to prevent rupture. The intra-operative course was uneventful, however in the post-anesthesia care unit the Veteran was found to be unable to move his lower extremities. A lumbar drain was placed and the Veteran was placed on phenylephrine to maximize spinal perfusion pressure. The Veteran did not experience any return of function or sensation in his bilateral lower extremities over the first 12 hours. He developed bilateral positive Babinskis and triple flex. At 12 hours, it was determined that there was no hope of neurologic recovery, and the lumbar drain was removed. A February 27, 2014, attending statement clearly indicates that the Veteran’s paraplegia was a sequelae of the procedure, maybe hemodynamic or embolic in etiology. As documented in brief received in September 2018, the Veteran asserts that VA authorized and paid for the surgery done at the University of Washington Medical Center because VA did not have the equipment or experience necessary to perform his surgery. Compensation benefits are not only available under § 1151 for disabilities proximately caused by negligence or similar instances of fault on the part of the VA, but also for disabilities proximately caused by “an event not reasonably foreseeable.” 38 U.S.C. § 1151(a)(1)(B). For an event to qualify as “an event not reasonably foreseeable,” it must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided rather than the type of risk that a reasonable health care provider would have disclosed in connection with obtaining informed consent. 38 C.F.R. § 3.361(d)(2). Recently in Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), the U.S. Court of Appeals for the Federal Circuit (Court) addressed the application of § 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151 (a)(1)(A) on a negligence theory (as discussed above) because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. The Court held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Court further held that § 1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. In this case, under Ollis, compensation benefits may be granted pursuant to § 1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran’s surgery (i.e., that the VA practitioners recommended that the Veteran have the surgery performed), (2) the paralysis that occurred was an “unforeseeable event”, and (3) the surgery proximately caused the Veteran’s additional disability. The evidence of record shows that the Veteran’s VA health care providers consulted with the University of Washington Medical Center providers in determining his course of treatment. However, additional development is necessary to determine whether the Veteran’s paralysis was an “unforeseeable event” or a known risk of the surgery. As such, a medical opinion addressing this issue should be obtained on remand. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must determine what psychiatric disorders are present. In doing so, the examiner should address the diagnoses of PTSD, depression, anxiety, and adjustment disorder of record. If any of these disorders are not found, the examiner should reconcile his or her findings with the previous diagnoses of record. Second, if PTSD is diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that PTSD had onset in, or is otherwise related to, active military service, to include the Veteran’s conceded stressor. Third, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed psychiatric disorder (non-PTSD) had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of chronic psychiatric symptoms since service. See September 2018 brief. The Veteran’s reported stressor of witnessing injury and death during service is conceded. 4. Obtain a medical opinion addressing whether the bilateral lower extremity paralysis that occurred after February 26, 2014, surgery to repair the Veteran’s abdominal aortic aneurysm was a known risk of the surgery or was it an accident that was not reasonably foreseeable. The examiner should review the claims file and answer the following questions: Was the bilateral lower extremity paralysis the Veteran sustained after the February 24, 2014, branched endovascular treatment of the abdominal aortic aneurysm an event not reasonably foreseeable (i.e., the type of risk that a reasonable health care provider would not have disclosed in informed consent procedures), or was it an ordinary known risk of the surgery performed? 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel