Citation Nr: 1806891 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-15 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to compensation under 38 U.S.C. § 1151 for bilateral lower extremity peripheral neuropathy as due to VA back surgery in December 2001. 2. Entitlement to increases in the (30 percent prior to December 31, 2012, and 70 percent from that date) ratings assigned for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1967 to January 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from May 2012 and August 2012 rating decisions by the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). An interim [December 2014] rating decision granted a 70 percent rating for PTSD with alcohol dependency in full remission, effective December 31, 2012. In his April 2014 substantive appeal, the Veteran requested a hearing before the Board; in March 2015 he withdrew the hearing request . The matter of the rating for PTSD is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. An unappealed January 2003 rating decision denied the Veteran compensation under 38 U.S.C. § 1151 for bilateral lower extremity peripheral neuropathy, based essentially on a finding that the disability had worsened as a result of natural progression and not due to VA treatment. 2. Evidence received since the January 2003 rating decision includes medical evidence that clearly indicates the Veteran's peripheral neuropathy of the lower extremities, in major part, was a consequence of (due to) VA surgical treatment; relates to an unestablished fact necessary to substantiate the claim of compensation under 38 U.S.C. § 1151 for bilateral lower extremity peripheral neuropathy; and raises a reasonable possibility of substantiating such claim. 3. It is reasonably shown that the Veteran has bilateral lower extremity peripheral neuropathy disability that resulted from VA surgical treatment and was not a reasonably foreseeable consequence of such treatment. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim seeking compensation for bilateral lower extremity peripheral neuropathy under 38 U.S.C. § 1151 may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a)(2017). 2. The criteria for establishing entitlement to benefits under 38 U.S.C. § 1151 for bilateral lower extremity peripheral neuropathy based on VA surgical treatment in December 2001 are met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter. Any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). Compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. A qualifying additional disability is one where the disability was not the result of the veteran's willful misconduct; was (as pertinent here) caused by VA hospital care, medical or surgical 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, or an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In determining whether there is additional disability, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). A claim will be denied only if the preponderance of the evidence is against the claim; if the evidence supports the claim, or is in equal balance, the claim is to be allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran alleges that he has bilateral lower extremity peripheral neuropathy that resulted from improper medical care at the Baltimore VA Medical Center in December 2001. He alleges that he developed bilateral lower extremity peripheral neuropathy as a consequence of back surgery by VA on December 6, 2001, underwent additional surgery two days later, to address the problem, and that despite prolonged rehabilitation the bilateral lower extremity peripheral neuropathy has persisted. An unappealed January 2003 rating decision denied the Veteran compensation under 38 U.S.C. § 1151 for bilateral lower extremity peripheral neuropathy based essentially on a finding that the disability was a result of natural progression, and not VA treatment. The evidence of record at the time of the January 2003 rating decision included the Veteran's lay statements, medical statements, and VA and private treatment records. The record shows that in December 2001, the Veteran underwent L3-S1 posterior instrumentation and fusion with ICBG, L4/5 decompression at the Baltimore VA Medical Center. He tolerated the surgery well but was noted to have bilateral quad weakness after the surgery. Two days later, he underwent hematoma evacuation and extended decompression; no significant hematoma was found, and decompression was extended to the L3 level. Weakness in the quads was noted to have improved substantially during his hospitalization. A December 14, 2001 discharge summary includes assessments of bilateral quad palsies status post lumbar fusion and decompression, likely bilateral femoral nerve palsies and not spinal in origin. The Veteran then underwent 6 weeks of rehabilitation; the admitting diagnoses include recent L3-S1 fusion and L2-L5 decompression; bilateral quadriceps weakness most likely secondary to intraoperative bilateral femoral palsies; and painful dysesthesias secondary to bilateral femoral palsies. It was noted that the bilateral quadriceps weakness was thought to be from the bilateral femoral nerve palsies from pressure during the surgery. In a July 2002 statement, Dr. Antoniades of Maryland Spine Center stated that he had treated the Veteran at the Baltimore VA Medical Center. He stated that on December 6, 2001, he performed a revision posterior lumbar decompression (levels L4/L5/S1), posterior arthrodesis L3-S1 with posterior spinal instrumentation on the Veteran. He noted that, postoperatively, the Veteran suffered from a bilateral peripheral femoral nerve neuropraxia, and he was "re-explored" on December 8, 2001 to make sure there was no other reason for the neurologic deficit. Dr. Antoniades opined that the weakness and paresthesias that the Veteran experienced were due to resolving neuropraxia . In a July 2002 statement, Dr. Kunkel of the Petersburg VA clinic noted that the Veteran was being followed there for peripheral neuropathy after undergoing lumbar surgery at the Baltimore VA Medical Center. He opined that "there is probability that the peripheral neuropathy was a direct result of the lumbar surgery of December 6, 2001." Evidence received since the January 2003 rating decision includes VA and private treatment records, medical journal articles, a VA examination report, an advisory medical opinion based on review of the record, and lay statements by the Veteran. On July 2003 pain medicine treatment, the Veteran reported that he initially injured his back at work, causing severe pain in his back and numbness in his legs. He reported that after the [December 2001] back surgery, had to undergo surgery again to address complications, and was paralyzed completely for about six months . He reported current bilateral lower extremity pain. Following physical examination, the diagnoses were chronic low back pain with bilateral radiculopathy, neuropathic pain, and status post three back operations. On March 2010 treatment, the Veteran reported that he had back surgery in 1998 which improved his pain; however, in 2001, he injured his back at work, falling and twisting and experiencing back pain and weakness in the legs. He underwent back surgery in December 2001 which was complicated by an increase in the pain and required further surgery two days later. He reported that he was then in a wheelchair for 7 months; he had regained some strength but had associated numbness, tingling, weakness, burning, and spasms in the legs. The impressions were low back pain, failed back syndrome, possible arachnoiditis, sacroiliac joint arthropathy, and myofascial pain disorder. On February 2012 VA examination, the Veteran reported that he underwent surgery on December 6, 2001. Following the surgery, he could not move his legs and underwent further surgery two days later. He then received physical therapy for 2 months, and was given leg braces for about 3 months. He reported a burning in the groin area to the ankles and all the way to the lower back, and sometimes across the back, and that he did not have the burning feeling prior to the surgery. The diagnoses, in pertinent part, included post surgical L3-4, L4-5, and L5-S1 bilateral radiculopathy of the lower extremities. The examiner opined that the bilateral lower extremity peripheral neuropathy was at least as likely as not caused by or is the proximate result of the back surgery at the Baltimore VA Medical Center. For rationale, the examiner cited to the December 8, 2001 operation report which indicated that on day 2 postop the Veteran had new bilateral neurological findings and 0/5 quad strength; underwent emergent CT scan and subsequent surgery because of these findings; he was taken to the operating room within 5 hours of noticing the deficit. The examiner noted that symptoms described prior to the December 6, 2001 surgery included low back pain and radiculopathy symptoms with weakness limited to the left lower extremity (as shown in a November 2001 treatment note). NCV testing three months after the surgery showed severe bilateral lower extremity neuropathy. The examiner cited to medical literature in support of the opinions stated. In a July 2012 medical advisory opinion based on review of the record, the consulting provider opined that the Veteran's peripheral neuropathy was less likely than not due to 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. The provider stated that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part was not supported by the available evidence. The reviewing examiner noted that the Veteran was taken to the operating room within 5 hours of noticing the deficit (prompt recognition of a rare [emphasis added] potential complication of the surgery), and cited to medical literature regarding postoperative spinal epidural hematomas, which indicates that spinal epidural hematomas are a rare cause of neurologic deficits and spinal cord compression, and may occur spontaneously with no obvious etiology. The Veteran also submitted medical journal articles regarding peripheral nerve injuries associated with anesthesia and the vulnerability of the femoral nerve during complex anterior and posterior spinal surgery. Because compensation under 38 U.S.C. § 1151 for bilateral lower extremity peripheral neuropathy was previously denied based on a finding that the disability worsened as a result of natural progression, and not due to VA treatment, for evidence to be new and material in this matter, it would have to pertain to that unestablished fact, i.e., tend to show that the bilateral lower extremity peripheral neuropathy is a result of VA treatment . Evidence received since the January 2003 rating decision includes a report of a February 2012 VA examination when the provider attributed the Veteran's current bilateral lower extremity peripheral neuropathy to his VA surgery (a spinal epidural hematoma that developed following the surgery). This evidence was not previously in the record, and is new. As it relates the peripheral neuropathy to the surgery by VA it pertains to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Therefore, it is material. Accordingly, the Board finds that new and material evidence has been received, and that the claim for compensation for bilateral lower extremity peripheral neuropathy under 38 U.S.C. § 1151 may be reopened. The analysis proceeds to de novo consideration of the claim. The Veteran is not prejudiced by the Board's proceeding to such consideration (given the determination that is made). The requirements for substantiating this claim for benefits under 38 U.S.C. § 1151 are, briefly: that it must be shown that the Veteran was hospitalized by VA/received VA surgical or medical care; that he has additional bilateral lower extremity peripheral neuropathy disability following (as a consequence or) such care; and that the additional disability was either due to fault on VA's part or was a consequence of the surgery not reasonably foreseeable. 38 C.F.R. § 3.361. It is not in dispute that the Veteran was hospitalized by VA and received VA surgical and medical care. It is also not in dispute that he has additional bilateral lower extremity peripheral neuropathy following the VA hospitalization and surgical treatment (as described in the February 2012 VA examiner's opinion). Furthermore, it is no longer in dispute (the February 2012 and July 2012 VA providers' opinions both support) that the bilateral lower extremity neuropathy is a consequence of complications in the course or, or following, the VA surgery. What remains to be established is that there was fault on the part of VA in the treatment provided or that the peripheral neuropathy is a consequence of the surgical treatment provided that was not reasonably foreseeable). VA providers have opined that the standard of care the Veteran received was proper. There is no need to belabor that point (despite the Veteran's allegations), in light of the determination that is being made. The July 2012 consulting VA physician explained that the Veteran's bilateral lower extremity peripheral neuropathy is due to a spinal epidural hematoma (a complication of the surgery) that is rare, and may occur with no obvious etiology. The characterization of the complication as rare, and that it required emergent surgical intervention (which notably with respect to fault was promptly provided) suggest that the series of events was not reasonably foreseeable. In light of the foregoing, and resolving any remaining reasonable doubt in the Veteran's favor, as required, the Board finds that all requirements for substantiating a claim under 38 U.S.C. § 1151 are met, and that entitlement to benefits under § 1151 for bilateral lower extremity peripheral neuropathy as due to VA surgical care in December 2001 is shown. ORDER The appeal to reopen a claim for compensation for bilateral lower extremity peripheral neuropathy under 38 U.S.C. § 1151 is granted, and entitlement to compensation for bilateral lower extremity peripheral neuropathy under 38 U.S.C. § 1151 is granted on de novo consideration. REMAND The Veteran contends that the rating assigned for his PTSD does not reflect the current severity of the disability. He was last afforded a VA psychiatric examination in December 2014 (more than three years ago). While a new examination is not required simply because of the time which has passed since the last examination, a new examination is appropriate when there is an assertion of an increase in severity since the last examination. See VAOPGCPREC 11-95 (1995). Accordingly, a contemporaneous examination is necessary. Updated records of VA evaluations or treatment the Veteran has received for PTSD are constructively of record, may contain pertinent information, and must be secured. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record all (updated to the present) clinical records of VA evaluations or treatment the Veteran has received for PTSD. 2. The AOJ should then arrange for the Veteran to be examined by a psychiatrist or psychologist to ascertain the current severity of his psychiatric disability. The Veteran's entire record should be reviewed by the examiner in connection with the examination (and the examiner should have available for review 38 C.F.R. §§ 4.126, 4.130, i.e., the portions of VA's Rating Schedule pertaining to the rating of psychiatric disability). The examiner should describe all symptoms of the psychiatric disability (and their impact on occupational and social functions) in detail. The examiner should specifically note the presence (and frequency/severity) or absence of each symptom listed in the criteria for a 100 percent schedular rating, as well as any symptoms of similar gravity found not listed in the rating criteria. The examiner should opine regarding the impact the Veteran's PTSD has on his daily activity/social functioning. 3. The AOJ must ensure that all development sought is completed and then readjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs