Citation Nr: 18116837 Decision Date: 07/10/18 Archive Date: 07/09/18 DOCKET NO. 05-20 881 DATE: July 10, 2018 ORDER Entitlement to service connection for hepatitis B and C is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the postoperative residuals of December 1999 lumbar spine surgery is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has hepatitis B and C due to a disease or injury in service, to include a specific in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, to include PTSD, due to a disease or injury in service, to include a specific in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran has a qualifying additional lumbar spine disability caused by the December 1999 VA surgical treatment. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis B and C are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for compensation under 38 U.S.C. § 1151 for a qualifying additional disability from the December 1999 VA lumbar spine surgical treatment are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Hepatitis B and C The Veteran contends that he has had hepatitis B and C since his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has diagnoses of hepatitis B and C, the preponderance of the evidence is against finding that they began during active service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran has asserted that he acquired hepatitis B and C in service. In a May 2002 statement, the Veteran indicated that he believed he acquired hepatitis B and C due to sexual activity. A November 1999 VA treatment record indicates the Veteran had newly diagnosed hepatitis B and C. At a March 2008 RO hearing, the Veteran testified that he believed he contracted hepatitis C from air gun vaccinations. He stated that he had only had a heterosexual relationship with one person in service, he did not have tattoos, and he did not inject himself with drugs. He testified that he was first diagnosed with hepatitis B and C in the 1990s. At a March 2016 Board hearing, the Veteran testified that he believed he contracted hepatitis when he was training. He testified that he was thrown into the cesspool in service. He stated he had never injected drugs or had a blood transfusion. He also reported that no doctors had talked to him about what had caused his hepatitis. He stated that all of his treatment had been at VA. In July 2016, the Board remanded the claim, in part, to schedule the Veteran for a VA examination addressing the etiology of his hepatitis B and C. The Veteran was notified that he would be scheduled for a VA examination in September 2017 letter. VA records indicate the Veteran failed to report for a scheduled VA examination in October 2017. The Veteran has not provided good cause for missing the examination or indicated that he would like to reschedule the examination. The Board notes that the evidence does not show the Veteran’s address changed during the time he was scheduled for the VA examination. VA treatment records reflect that he continued to receive treatment from VA. The Court has held that “[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). As the Veteran failed to report for the examination without good cause, the Board must decide his service connection claim based on the evidence of record. See 38 C.F.R. § 3.655(b). There is no opinion of record linking the Veteran’s hepatitis B or C to service. VA treatment records show that the Veteran was not diagnosed with hepatitis B or C until 1999, which was decades after his separation from service. While the Veteran is competent to report having experienced certain symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of hepatitis B or C. The issue is medically complex, as it requires interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the Veteran believes his hepatitis B and C are related to an in-service injury, event, or disease, including air gun inoculations, he is not competent to provide a nexus opinion in this case. Accordingly, the Board finds that the preponderance of the evidence of record weighs against finding that that Veteran’s hepatitis B and C had its onset in or is related to his active duty service. An Acquired Psychiatric Disorder, to include PTSD The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, that is related to in-service stressors. The question for the Board is whether the Veteran has a current acquired psychiatric disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease, or, in the case of PTSD, a verified in-service stressor. The Board concludes that, while the Veteran has a current diagnosis of PTSD and has previously been diagnosed with schizophrenia, the preponderance of the evidence weighs against finding that the Veteran has an acquired psychiatric disorder that began during service or is otherwise related to an in-service injury, event, disease, or stressor. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a),(d). The Veteran has asserted that he served in Japan and the Republic of Vietnam during the Vietnam War era. His service personnel records show that he served in Japan, but they do not show that he served in Vietnam. The records reflect that the Veteran had three nonjudicial punishments and one summary court-martial. A May 1970 memorandum indicates consideration was made for an undesirable discharge by reason of unfitness. The report noted the Veteran had frequent involvement of a discreditable nature with military authorities. A May 1970 service personnel record also reflects that the Veteran appeared to be under the influence of intoxicants. The Veteran’s service treatment records are unavailable. At the March 2016 Board hearing, the Veteran testified that he was diagnosed with schizophrenia three years after service. A September 1998 VA examination report indicates the Veteran had substance-induced psychosis, paranoia. A November 2002 VA treatment record also indicates the Veteran had chronic schizophrenia by history, PTSD, cocaine dependence in remission, and cannabis dependence in remission. The diagnosis of PTSD was based on a claimed stressor of seeing people killed, a friend dying, and villages burning. The Veteran was scheduled for VA examinations in October 2012 and October 2017, but failed to report for those examinations. As the Veteran failed to report for the October 2017 examination without good cause, the Board will adjudicate his original compensation claim for service connection for an acquired psychiatric disorder based on the evidence of record. See 38 C.F.R. § 3.655(b). Although the Veteran’s VA treatment records reflect that he has been diagnosed with PTSD and had a history of schizophrenia, the records do not establish a nexus between the Veteran’s acquired psychiatric disorder and service. The Board also notes that the Veteran’s claimed service in Vietnam has not been verified, nor have his alleged stressors of seeing villages being burned and people killed. At the March 2016 Board hearing, Veteran also asserted that he got into firefights overseas and fights in Okinawa. As the Veteran did not report for the scheduled VA examination, there are no medical opinions addressing whether he has PTSD related to those stressors. VA treatment records show that the Veteran was not diagnosed with an acquired psychiatric disorders until many years after his separation from service. While the Veteran is competent to report having experienced symptoms of an acquired psychiatric disorder since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of PTSD or schizophrenia. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In addition, although the Veteran believes that he has an acquired psychiatric disorder, to include PTSD and/or schizophrenia, that is related to an in-service injury, event, or disease, including his service in Japan, he is not competent to provide a nexus opinion in this case. There are no medical opinions of record addressing the etiology of the Veteran’s claimed acquired psychiatric disorders. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim, and the claim for service connection for an acquired psychiatric disorder must be denied. Entitlement to compensation under the provisions of 38 U.S.C. 1151 for postoperative residuals of December 1999 VA lumbar spine surgery The Veteran asserts that he has residuals, including pain in his lower back, from a December 1999 VA back surgery. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if (1) the disability was not the result of the veteran’s willful misconduct, (2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability was (A) 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, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The question for the Board is whether it is at least as likely as not that the Veteran sustained additional disability that was not the result of the his willful misconduct; and the disability was caused by hospital care, medical or surgical treatment, or examination furnished under the law administered by VA; and the proximate cause of the disability was either (a) 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, or examination, or (b) an event not reasonably foreseeable. The term “additional disability” means any condition that did not exist immediately before the Veteran’s December 1999 back surgery. The clinician must compare the Veteran’s condition immediately before and after the December 1999 VA surgery. A December 1999 VA operative report reflects that a lumbar laminectomy, discectomy, and foraminotomy was performed for a right-sided L5-S1 herniated disc. A January 2000 discharge report indicates that there was a small dural tear at the time of surgery. Following the surgery, the Veteran was observed with bedrest and subsequently developed a slight cerebrospinal fluid (CSF) leak from the suture site. A lumbar spinal drain was placed, and the Veteran was observed for a few days. The record noted that the Veteran responded to the treatment well, and following complete stoppage of any CSF leak from his surgical incision, the lumbar spinal drain was removed. The Board concludes that, while the Veteran had an additional disability following the December 1999 back surgery, specifically the CSF leak, the preponderance of the evidence weighs against finding that this resulted in qualifying additional disability because it was not proximately caused by either (a) 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, or examination, or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. At the March 2008 RO hearing, the Veteran testified that he was not told that losing spinal fluid was a risk of the lumbar spine operation. The Veteran testified that, although he had less pain following the operation, he had numbness in both legs following the operation. He had previously had numbness in only one leg. At the March 2016 Board hearing, the Veteran testified that he filed the claim because of the leaking fluid. He indicated that, although his back pain improved following the surgery, his lower extremities were worse. The Veteran stated that he had signed an informed consent form prior to the surgery. The Veteran was provided with a VA examination in September 2012. The diagnosis was right S1 lumbar radiculopathy, status post lumbar spine surgery. The Veteran complained of pain on all ranges of motion, but there were no objective signs of pain. In a December 2012 addendum opinion, a VA physician stated that operative records revealed an unintentional dural leak that was later repaired in a second surgery. The Veteran was started on antibiotics, but no infection was suspected. After dural repair, the Veteran had no other neurological complications at that time, per the records. The VA physician stated that, “CSF leak is a well known complication of spine surgery, literature suggests from 1-4% of surgeries. Most recent literature also suggests that long term sequela from a leak is rare.” The VA examiner stated that, given that leaks are a known possible complication of lumbar surgery, it is not possible to predict in which of the cases the event will happen. The VA examiner stated that “I believe this is an unforeseeable event and not due to negligence upon the VA staff.” The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the VA examiner indicates the complication was an unforeseeable event, in the context of the opinion, the examiner stated it is a known risk of surgery, but it is impossible to predict in which cases the event will happen. As the examiner indicated it was a known risk, the opinion supports a finding that it was reasonably foreseeable. The preponderance of the evidence weighs against a finding that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the surgical treatment without the veteran’s informed consent under the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361 (d)(1); McNair v. Shinseki, 25 Vet. App. 98 (2011). The December 2012 opinion indicates there was no negligence by VA providers. A December 1999 informed consent form also reflects that the Veteran was notified of the risks, benefits, and alternative treatment options. The preponderance of the evidence is also against a finding that the proximate cause of the Veteran’s additional disability was an event not reasonably foreseeable. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Whether an additional disability is an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. In this case, the December 2012 VA physician stated that a CSF leak is a well-known complication of spine surgery and cited to medical literature. Therefore, the evidence shows that the CSF leak was reasonably foreseeable to a reasonable health care provider. Although the Veteran believes he has a qualifying additional disability due to the December 1999 back surgery, he is not competent to provide a diagnosis of additional disability in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, particularly the December 2012 VA addendum opinion. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim, and the claim must be denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Marenna, Counsel