Citation Nr: 21002130 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-16 878 DATE: January 12, 2021 ORDER Compensation under 38 C.F.R. § 1151 for a right shoulder loss of range of motion, (“right shoulder disability”), is denied. FINDING OF FACT Additional disability affecting the right shoulder was not a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a right shoulder disability have not been met. 38 U.S.C. §§ 1131, 1151, 5107; 38 C.F.R. §§ 3.102, 3.358, 3.361, 17.32(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to July 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2019. The claim was remanded for the RO to obtain an addendum VA opinion. Of note, the August 2016 and November 2016 VA examiner provided an inadequate rationale as it relates to an event not reasonably foreseeable prong, as reflected in 38 U.S.C. § 1151(a)(1). In February 2020, an addendum addressing the reasonably foreseeable prong only, was added to the file. Thus, the Board finds that the AOJ substantially complied with the January 2020 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder disability. Specifically, he argues a fall resulted in a right shoulder disability. He believes the fall was the result of a misdiagnosed condition by the VA or an overlooked side effect of a VA prescribed drug, Sinemet, which caused muscle weakness. 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 or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death 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 or death was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that 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 proximately caused a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s or, in appropriate cases, the veteran’s representative’s informed consent. Determinations of 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. Consent may be express (i.e. given in orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death 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. 38 C.F.R. § 3.361(d)(2). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Turning to the evidence of record, in February 2008 VA treatment records, the Veteran reported he has some shoulder pain but none in the past two months. A December 2008 VA treatment record notes the Veteran complained of right shoulder pain after “trying to put chain to the truck wheels” two months prior. The problem persisted after seeing two chiropractors and he complained of knee pain as well. An August 2010 VA treatment record indicated the Veteran had restless leg syndrome. In September 2010 the Veteran reported one fall in the past six months. In August 2011, VA treatment records reflected an assessment of restless leg. The Veteran was taking Sinemet with good control. In March 2013 VA treatment records, the Veteran reported his shoulder was fairly normal until a recent fall. He was unable to abduct his right shoulder. An impression revealed a rotator cuff tear. The Veteran reported his activities were limited only by his knees. In April 2013, VA treatment records reflected surgery on the right shoulder for a fatty tumor. In November 2015 VA treatment records, an MRI of the left knee revealed degenerative joint disease. An addendum noted the Veteran had osteoarthritis of both knees with right knee replacement earlier that year. In January 2016 private treatment records, the Veteran complained of falls. An MRI of his head, cervical spine, and right hand were taken. The results of his hand revealed possible erosive osteoarthritis. The Veteran reported he has seen several doctors for the weakness in his right arm and leg and was told he has a compression of a nerve in his neck. In June 2016 VA treatment records, the Veteran was seen by his primary physician, J.K., for dizziness. He reported the dizziness beginning that morning with three prior episodes of dizziness. In August 2016 VA treatment records, a staff surgeon opined the Veteran “did not have restless leg syndrome prior to his surgery, but instead had significant spinal cord compression, which his greatly improved following his surgical procedure.” She noted she is not an expert on carbidopa or levodopa, “but it is certainly possible he was getting some side effects from that medicine that also affected his ability to walk.” An August 2016 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran was diagnosed with right rotator cuff tear. The examiner noted the Veteran was diagnosed with restless leg syndrome in 2010 due to shakiness of his lower extremities. He was treated with Sinemet (carbidopa-levodopa) successfully. In 2015 he developed a tremor in his hand and the dosage for Sinemet was increased. There were no complaints of dizzy spells, weakness, or frequent falls at that time. In late 2015 he started falling down more and developed pain in his neck with tingling sensation in his upper extremities. An MRI showed a cervical spine myelopathy and severe cervical spine stenosis, which was treated successfully with cervical spine surgery. He was diagnosed with cervical spine myelopathy in January 2016. She found “the veteran sustained a right shoulder injury with rotator cuff tear most likely due to one of the falls in 2013 as noted in his medical record, most likely due to his severe osteoarthritis, since he did not complain about upper and lower extremities weakness numbing or tingling sensation, and his tremor was well controlled on Sinemet.” She noted “Sinemet could cause dizziness and contribute to his falls, however the Veteran’s main cause of bilateral upper and lower extremities weakness was cervical spine myelopathy he developed in December 2015 or January 2016. She opined “it is less likely that the Veteran’s frequent falls had caused injury to his cervical spine since no cervical spine fracture were noted. The cervical spine myelopathy was most likely due to severe cervical spine stenosis due to degenerative changes, due to aging.” In September 2016 private medical records, after review of the January 2016 MRI results of the right hand, a doctor, A.C., found the Veteran’s symptoms are not likely caused by carbidopa-levodopa. He believes the underlying neurological condition is the likely cause. In a November 2016 addendum to the August 2016 VA examination, the examiner opined the Veteran’s additional disability was less likely as not as a result of careless, negligence, lack of skill or similar incidence, or fault on the part of the attending VA personnel. The rationale was based on the fact that the Veteran initially responded well to treatment for restless leg syndrome. The Veteran had severe bilateral knee osteoarthritis which resulted in the fall leading to his right shoulder injury. She found the right shoulder injury was more likely due to his knee condition and less likely associated with the side-effects of Sinemet. He had a knee replacement in July 2015 with normal convalescence. She noted “no weakness or frequent falls were noted during convalescence time as would be expected.” The examiner also opined the Veteran’s additional disability was less likely as not reasonable foreseen by a reasonable provider. She based this opinion on the lack of complaints of lower extremity weakness or side effects of Sinemet, the fact that the injury occurred before the right knee replacement, and no falls or progressive weakness was noted during convalescence after the knee replacement. The examiner further opined it was less likely as not that the Veteran was misdiagnosed with restless legs syndrome, which lead to the right should injury and then to severe degenerative changes in his cervical spine. This opinion was based on the fact that the Veteran developed severe weakness and neck pain for at least three to five months prior to his examination performed in January 2016, with a few falls six weeks prior. She noted “this meant the Veteran started developing signs of myelopathy in the middle of 2015, whereas his shoulder injury occurred at least a year before.” She opined the severe degenerative cervical spine disease is most likely a result of aging and less likely of falls since the MRI did not show any acute fracture. A January 2017 VA treatment note indicated the Veteran called to report he has had no falls since discontinuing the carbidopa levodopa medication. In a January 2017 letter, pharmacist M.J., found the Veteran’s dose of Sinemet was not FDA approved for the use of restless leg syndrome, however it is approved for Parkinson disease. As such, the use for restless leg syndrome is considered an off-label use. The pharmacist indicated the dose amount was six times the amount he should have received for a diagnosis of restless leg syndrome according to medical literature. The symptoms include orthostatic hypotension, excessive somnolence, dizziness, dyskinesia, and depression. The pharmacist supports his petition for compensation and noted he has not had any falls, to her knowledge, since discontinuation of Sinemet. In a January 2017 letter from M.S., D.O., it was noted an MRI of the Veteran revealed severe cervical cord myelopathy. M.S. indicated the risk of falling may be related to the Veteran’s medications, but more so, is probably related to his upper and lower extremity weakness from his cervical myelopathy. In April 2017, post anterior cervical diskectomy and fusion (ACDF) at C4-5 for myelopathy surgery, the Veteran reported his strength is improving. The numbness in his hands and feet have nearly completely resolved and his strength and balance are continuing to improve. The surgeon noted the Veteran previously had a diagnosis of restless legs syndrome and the symptoms could be related to that, but in the absence of new symptoms of myelopathy or radiculopathy, there would be no further imaging. In a May 2017 private opinion letter from M.S., D.O., he opined the Veteran’s shoulder disability should be considered serviced related because VA played a major role in his treatment. He based the opinion on VA medical records and the Veteran’s statements. He noted, after review of the medical records indicating the Veteran had taken carbidopa-levodopa for nearly two years, it became apparent the side-effects resulted in him becoming weak and falling. After an examination of the Veteran he concluded the results were consistent with probable cervical cord myelopathy not restless leg syndrome. The Veteran believes a March 2013 fall while moving to Nebraska resulted in his right shoulder disability and cervical cord myelopathy. In February 2020 a VA examination addendum opinion was added to the file. The examiner opined the additional disability was not at least as likely as not the result of an event not reasonably foreseeable. It was reasoned, The diagnosis of the degenerative cervical myelopathy was not made until a late stage because an incorrect diagnosis was made (restless leg syndrome/RLS) to explain the symptoms of the myelopathy. The resulting additional disability would be "reasonably foreseeable" from such an extended delay in diagnosis of the cervical myelopathy (Diagnosis of RLS goes back to at least 2010 in records found in VBMS). This opinion conflicts with the prior C&P examination dated 08/04/16. In my opinion the rationale given at that time is faulty, since the myelopathy symptoms she describes that "started around Sept, Oct of 2015" are LATE findings of the condition of cervical myelopathy. The cervical MRI confirms that the myelomalacia (spinal cord abnormality due to compression that resulted in the weakness, incoordination and falls) was already chronic by Dec 2016 MRI. The spinal cord compression was due to degenerative changes (as opposed to a new herniated disc, for example, that could have resulted in relatively rapid compression) that would have taken years to develop and result in such late-state and chronic compression, therefore, it is clearly and unmistakably a process that had begun prior to Sept 2015. This examiner's opinion is further supported by the fact that the symptoms that had previously been attributed to restless leg syndrome resolved after the veteran's neck surgery (although the prior examiner was at a loss to explain this improvement: "This examiner cannot explain the fact that after his cervical laminectomy the veteran tremor subsided and has not required any more treatment."-see 11/30/16 C&P opinion. The reason was that RLS had been a misdiagnosis) In June 2020, the RO requested clarification of the February 2020 addendum opinion as the opinion failed to reference the right shoulder. In September 2020 another VA opinion was rendered. The examiner opined the right shoulder symptoms are due to the cervical myelopathy. The examiner indicated the prior opinion report of 02/19/20 further discusses the question posed for that report. After a review of all of the evidence, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder disability have not been met. Initially the Board notes carbidopa-levodopa and Sinemet refer to the same medication. The Board reviewed the January 2017 letter from pharmacist M.J., however this letter does not provide an opinion on whether the Veteran’s medication specifically caused the fall that resulted in his right shoulder disability. She provides information on the symptoms associated with Sinemet and notes her support for his compensation claim but she does not specifically mention his current disability. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Therefore, the Board does not find this evidence persuasive. Likewise, the Board does not find the May 2017 private opinion letter from M.S., D.O., persuasive. He notes the Veteran’s weakness was apparent after taking the carbidopa-levodopa medication for 2 years with no rationale. However, in a January 2017 letter he attributed the Veteran’s falling to weakness associated with cervical myelopathy. This doctor has not been consistent with his findings and offered no rationale for his latter opinion. Therefore, the Board does not find this evidence persuasive. To the contrary, the Board finds the August 2016, November 2016, February 2020, and September 2020 VA addendum opinions more persuasive. Addressing 38 U.S.C. § 1151(a)(1)(A), the August and November 2016 VA examiner opined the Veteran’s additional disability was less likely as not as a result of careless, negligence, lack of skill or similar incidence, or fault on the part of the attending VA personnel. The examiner reasoned the Veteran had severe bilateral knee osteoarthritis, which resulted in the fall leading to his right shoulder injury. She found the right shoulder injury was more likely due to his knee condition. The Board acknowledges the VA examiner contributed the Veteran’s fall to a diagnosis the Veteran received after the fall, i.e. a 2015 diagnosis of osteoarthritis of both knees with right knee replacement, however, the Veteran was complaining of his knee pain as early as December 2008, prior to his knee and leg diagnosis, as well as his fall. During the March 2013 VA appointment, the Veteran complained of the fall which resulted in his right shoulder loss of range of motion, however, at the same appointment he reported his activities were limited only by his knees. This further suggest the Veteran had knee issues prior to his diagnosis. Addressing 38 U.S.C. § 1151(a)(1)(B), the February and September 2020 VA examiner opined the additional disability was not at least as likely as not the result of an event not reasonably foreseeable, noting the resulting additional disability would be “reasonably foreseeable” from such an extended delay in diagnosis of the cervical myelopathy. The Board finds the rationale for this finding is competent and probative medical evidence because it is factually accurate, is supported by an adequate rationale, and there are no contrary opinions of record. Therefore, the Board finds the August 2016, November 2016, February 2020, and September 2020 VA addendum opinions more persuasive. Although the February and September 2020 VA examiner found the August 2016 VA examiner provided a “faulty rationale,” that was in reference to the reasonably foreseeable prong as outlined in 38 U.S.C. § 1151(a)(1)(B). The 2020 examiner noted the rationale was faulty because “the myelopathy symptoms she describes that “started around Sept, Oct of 2015” are LATE findings of the condition of cervical myelopathy.” The Board previously found that rationale inadequate as outlined in the December 2019 Board decision. Although the August 2016 VA staff surgeon opined the Veteran did not have a restless leg syndrome prior to surgery and the side effects of carbidopa or levodopa could have possibly affected the Veteran’s ability to walk, she noted she is not an expert. Additionally, she indicated the medication possibly could have affected his walk. The opinion appears to be tentative, with the use of words such as “probably,” and provides no rationale. Speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The Board acknowledges the Veteran’s misdiagnosed arguments; however, the record has to indicate that misdiagnosis rose to the level of 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. The January 2017 letter from pharmacist M.J., and the January and May 2017 private opinion letters from M.S., D.O. fail to address whether the misdiagnosis rose to the level noted above or was an event not reasonably foreseeable. The only medical evidence adequately addressing this standard is the February 2020 VA addendum opinion and that opinion found the burden has not been met. During the October 2019 Board hearing, the Veteran argued he provided lower extremity weakness complaints to his primary physician J.K; however, the record does not reflect this. The record reflects a June 2016 report of dizziness, but nothing specific to weakness in the lower extremities. Additionally, during the October 2019 Board hearing, the Veteran and his attorney argued the misdiagnosed restless syndrome resulted in treatment with Sinemet, which caused the Veteran to fall, and subsequently sustain the right shoulder disability. While the Board sympathizes with the Veteran’s situation, the Board cannot grant the claim based on these lay statements alone. There are no persuasive medical opinions that purports to establish that any additional disability was a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Rather, the persuasive medical evidence of record suggests otherwise. The Board finds that these matters are medical in nature and require medical knowledge to resolve. Therefore, the Veteran’s opinion as to the standard of care he received is not competent evidence under the circumstances of this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, in the September 2016 letter from A.C., M.D., and the January 2017 letter from private doctor M.S., D.O., they both attributed the Veteran’s symptoms to the cervical spine myelopathy, which is contrary to the Veteran’s theory. The Board acknowledges the November 2020 Written Brief Presentation arguing the issues on appeal are entitlement to service connection for a cervical spine disability and residuals and complications, including under section 1151, and entitlement to service connection for a lumbar spine disability. However, the August 2016 notice of disagreement addresses entitlement to service connection for a right shoulder disability under 38 U.S.C. § 1151. To the extent that the Veteran is arguing a cervical spine disability is related to the right shoulder disability, the Board finds that argument is not properly before the Board and is misplaced. The Veteran is not service-connected for the right shoulder disability and the Veteran has not submitted an application or supplemental claim for a cervical or lumbar spine disability. As such, the Board does not have judication to adjudicate service connection claims for a cervical or lumbar spine disability. As it relates to the cervical and lumbar spine disability, the Representative also argued VA is obligated to consider issues that were not specifically raised by the claimant but may reasonably be inferred from the claim, citing to Douglas v. Derwinski, 2 Vet. App. 435 (1992). While the Board acknowledges this argument, the Board does not find the cervical spine and lumbar spine disability have been reasonably raised by the record. Although the Veteran has cervical cord myelopathy the Veteran has not argued nor submitted any persuasive lay or credible medical evidence indicating the cervical cord myelopathy is the result of service or caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary. The submitted VA and private evidence of record has consistently addressed the current right shoulder disability and whether it was caused by or is the result of a misdiagnosis or side effect of VA prescribed medication. In fact, in a January 2017 statement, the Veteran specifically argued the shoulder injury is a direct result of a misdiagnosis or an overlooked side effect of prescribed drugs. The Veteran has not submitted, nor does the record indicate the Veteran suffers from a lumbar spine disability related to service in any way. Accordingly, the Board does not find the Representatives argument in favor of a cervical or lumbar spine disability raised by the record, persuasive. In light of these findings, the Board concludes that entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.