Citation Nr: 21002694 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 10-24 423 DATE: January 14, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right eye disability is denied. Entitlement to service connection for bilateral upper extremity radiculopathy, to include as secondary to a service-connected neck disability, is granted. Entitlement to service connection for involuntary muscle twitches is denied. Entitlement to service connection for a left eye disability is denied. Entitlement to a total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The proximate cause of the Veteran’s right eye disability was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical or surgical treatment and was reasonably foreseeable. 2. The Veteran’s bilateral upper extremity radiculopathy is proximately due to his service-connected neck disability. 3. The Veteran does not have a muscle twitch disability that was incurred in or is due to his time in service nor is it proximately due to any of his service-connected disabilities. 4. The Veteran does not have a left eye disability that was incurred in or is due to his time in service nor is it proximately due to any of his service-connected disabilities. 5. The Veteran’s service-connected disabilities render him unemployable. CONCLUSIONS OF LAW 1. The criteria for entitlement to benefits pursuant to 38 U.S.C. § 1151 for a right eye disability have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for service connection for bilateral upper extremity radiculopathy, to include as secondary to service-connected disabilities, are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. 3. The criteria for service connection for involuntary muscle twitches, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. 4. The criteria for service connection for a left eye disability, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303, 3.310. 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1973 to November 1976 and from September 1978 to March 1980. These matters were previously before the Board and were remanded in an October 2015 decision for further development. This development has been completed and the matters are again before the Board. Benefits Under §1151 Claim 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 or medical or surgical treatment upon which the claim is based to the veteran’s condition after such care or treatment. 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. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care or medical or surgical treatment furnished the veteran by VA. 38 C.F.R. § 3.361 I. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 I(1). The proximate cause of the disability must have been carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. 38 U.S.C. § 1151 (a)(1)(A). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a veteran’s additional disability; it must be shown that the medical or surgical treatment caused the veteran’s additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the medical or surgical treatment without the veteran’s informed consent. Id. Alternatively, the proximate cause of the disability may be an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1)(B); 38 C.F.R. § 3.361 (d)(2). Whether the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). 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. Id. In February 2007, the Veteran said he had surgery on his right eye in April 2006 for glaucoma. The Veteran said he woke up in the middle of the surgery and heard the doctors talking about things other than his surgery and laughing. The following day, the Veteran returned for a follow up and learned his right eye was leaking and that the surgery on his left eye couldn’t be done until his right eye was repaired. The Veteran reported that one year later, his vision had diminished, his right eye will ache and take away some of his sight. The Veteran reported his left eye will ache also and cannot see well. The Veteran also reported his ability to see colors was not good. The Veteran said he found out his left eye problems were due to overuse. In June 2020, the Veteran said a hole was left in his right eye and he had to have it closed. The Veteran had two surgeries for his right eye, one in 2006 and one in 2007 in order to deal with some eye leakage the Veteran was experiencing. Both surgical notes indicate the Veteran had given informed consent. The Veteran’s record clearly shows he has been treated for a right eye disability, including vision problems and leakage. (See e.g. April, December 2006 treatment records.) In February 2016, an examiner opined the Veteran did not sustain an additional disability, either directly or through aggravation of any preexisting condition that was caused by one or more of the VA right eye surgeries. The examiner also said there was no additional disability of the right eye following a VA eye surgery that was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment. The February 2016 examiner stated the Veteran’s vision and visual fields in both eyes were severely compromised before VA eye surgery was performed. Previously, in September 2011, it was noted the Veteran’s right eye was outside normal limits and the Veteran’s left eye was also outside of normal limits. The examiner said there was an additional disability of the right eye following a VA eye surgery which could be considered to be an ordinary risk of the treatment provided and that this additional disability was a risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. The examiner also noted VA did not fail to exercise a degree of care that would be expected of a reasonable health care provider. While a September 2011 examiner said there was an additional disability of the Veteran’s right eye, this examiner also explained this additional disability was considered to a be an ordinary risk of surgery and that there was no negligence by VA. Additionally, the February 2016 examiner said there was no additional disability, nothing that the Veteran’s right eye vision was already severely compromised before the surgery was even performed. Even if VA were to presume there is an additional right eye disability that is now present, no examiner has opined that the proximate cause of the disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. Indeed, as discussed below, the February 2016 examiner opined that but for surgical intervention from VA, the Veteran would most likely be blind now. Therefore, for these reasons, the claim will be denied. Service Connection Claims Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Bilateral Upper Extremity Radiculopathy Claim The Veteran contends he has bilateral upper extremity radiculopathy that was incurred in and due to his time in service or is otherwise due to his service-connected disabilities. The Veteran said his 1998 and 2002 accidents caused stiffness in his neck and severe neck spasms. The Veteran said he also had pain down his arms, even when laying down. The Veteran said he still had to use ice packs. (See July 2007 statement.) The Veteran said repetitive use of his arms caused severe pain in his shoulders and neck. The Veteran said he was in constant pain and could not focus or barely function and that his present medication wasn’t helping much. (See May 2009 statement.) The Veteran has been diagnosed with bilateral upper extremity radiculopathy. (See e.g. February 2016 examination.) This disability was diagnosed in 2020, years after his neck disability. The Veteran’s service treatment records (STRs) do not indicate he had ongoing trouble or treatment for this condition while in service. However, the objective evidence shows that this disability is proximately due to his service-connected neck disability. The Veteran had an examination in February 2016. This examiner stated the Veteran had a nerve disability before his March 2010 spine surgery and opined the Veteran’s nerve conditions were not incurred in or due to his time in service, to include his car accident and that his nerve disability was not aggravated by his neck disability. The Veteran had another examination in July 2020. The examiner saw the Veteran in person and reviewed his file. The examiner noted the Veteran had a diagnosis of upper extremity radiculopathy. The examiner noted additional conditions were found which were directly due to or related to the service-connected diagnosis. The Veteran most recently had an examination for his upper extremity radiculopathy in September 2020. The examiner reviewed the Veteran’s file, saw him in person, and considered the Veteran’s symptoms. The examiner noted the Veteran had been diagnosed with upper extremity radiculopathy. The examiner opined the Veteran’s upper extremity radiculopathy was “directly due to or related to the service-connected diagnosis.” The examiner explained that due to his neck disability, the Veteran now had upper extremity radiculopathy and that it was a common condition associated with cervical spine injuries. The Board finds that while some evidence indicates the Veteran’s bilateral upper extremity nerve condition was not due to his time in service or his service-connected neck disability, other evidence shows the Veteran’s bilateral upper extremity radiculopathy is proximately due to his service-connected neck disability. The Board finds the evidence at least in equipoise and therefore, the claim will be granted. Involuntary Muscle Twitch Claim The Veteran contends he has an involuntary muscle twitch disability that was incurred in and due to his time in service or is proximately due to his neck disability. The Veteran’s record show he has been seen for muscle spasms. (See e.g. February 2001, May 2002 treatment records.) The Veteran had an examination for his central nervous system in February 2016. The examiner reviewed the Veteran’s file, saw him in person, and considered the Veteran’s history and involuntary arm muscle movements. The examiner opined the Veteran had not been diagnosed with a central nervous system (CNS). The examiner opined there was no muscle twitch elicited or demonstrated on current examination, suggesting “a temporary intermittent condition and not a disabling condition.” Because the Veteran did not have a separately diagnosed twitch condition, it was less likely than not due to an in-service injury or condition, or medications used to treat a service-connected disability. The examiner also noted multiple EMG studies done “indicated no evidence of muscle fasciculations.” The examiner explained, “muscle twitch is not the disability, it is a temporary condition which is involuntary.” The Veteran’s STRs do not show that the Veteran was treated for or complained of an ongoing twitch or involuntary muscle movements while in service. The Veteran’s treatment records post-service do indicate he had shoulder pain, but no separate muscle twitch disability has been shown in the Veteran’s medical record. For these reasons, the claim will be denied. Left Eye Disability Claim The Veteran contends he has a left eye disability that was incurred in and due to his time in service or was caused by the delay of his right eye surgery. The Veteran has been treated for left eye conditions, including glaucoma. (See e.g. January 2017 treatment records.) However, the Veteran’s STRs do not show the Veteran suffered from any ongoing left eye conditions while in service. Additionally, the Veteran’s record does not contain objective evidence linking the Veteran’s left eye condition to his right eye condition. The Veteran had an examination for his eyes in February 2016. The examiner saw the Veteran in person, reviewed his file, and noted the Veteran had eye disabilities in both eyes, including glaucoma in both eyes. The examiner opined that if not for the surgeries performed by VA, the Veteran would likely be blind by now. The examiner opined surgical intervention kept the Veteran from losing all sight in both eyes. For these reasons, the claim will be denied. Regarding all the above, in particular the denied claims, the Board acknowledges the Veteran’s statements that his conditions bother him and that he believes they are due to his time in service. The Board also understands the Veteran’s multiple statements that he believes he is entitled to extra benefits because of negligence of VA with the surgery on his right eye. The Board also acknowledges the Veteran continues to seek treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as diagnosing or determining the nature and etiology of medical conditions or to determine whether he has an additional right eye disability that is due to negligent treatment on the part of VA. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board places more probative weight on the objective medical evidence of record. The Board finds the examinations of record to be adequate as the examiners saw the Veteran in person, reviewed his record, and offered opinions backed by explanations. It is important for the Veteran to understand that the medical finding provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his disabilities are the result of service, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU Claim The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2016). While the Veteran’s current combined disability rating does not meet the schedular requirements for a TDIU, the Board finds in light of the additional service-connected disabilities in this decision, the Veteran now meets the requirements for a schedular TDIU. The Veteran is also service-connected for the following: • Depressive disorder, rated as 50 percent disabling, • A neck disability, rated as 20 percent disabling, • Supraventricular tachycardia, rated as 10 percent disabling, • Varicocele, post-operative, rated as noncompensable, • Headaches, rated as noncompensable, • A surgical scar, rated as noncompensable, and • Bilateral upper extremity radiculopathy, to be rated by the RO. For the reasons below, the Board finds the Veteran’s service-connected disabilities render him unemployable. The Veteran has a high school education, went to college, and took a few paralegal courses. The Veteran has work experience with disabled individuals, repairing computing cartridges, worked as a paralegal, drove a taxi, and worked as a barber, but was no longer working. (See June 2020 Mental Disorders examination.) In June 2020, the Veteran’s mental health was found to lead to occupational impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran’s symptoms included depressed mood, chronic sleep impairment, and disturbances of motivation and mood. In the July and September 2020 examinations, the examiners found the Veteran’s neck and radiculopathy disabilities led to zero to one week of work time lost in the past 12 months. The Veteran was unable to bend, kneel, squat, or stand or sit for prolonged periods of time. Additionally, due to his upper extremity radiculopathy, the Veteran was unable to grab or hold things due to pain and had difficulty turning his head to look over his shoulders when driving. In a July 2020 examination, the Veteran’s headaches were found to impact his ability to work in that it affects his ability to focus and concentrate which reduces productivity. In July and September 2020, examiners said the Veteran’s scar did not impact his ability to work. A February 2016 examination found the Veteran’s bilateral upper extremity neuropathy didn’t impact his ability to work. In a July 2014 examination, the Veteran’s neck was found to impact his ability to work in that he had trouble lifting and carrying things and in October 2010, the Veteran reported his mental health disability impacted his ability to work in that he had trouble concentrating and had some memory loss. In March 2000, the Veteran said he was unable to do any repetitive movement with his arms due to his radiculopathy. Clearly, when looking at the Veteran’s disability picture as a whole, the Veteran is precluded from any type of work that would require physical activity, prolonged standing, lifting, carrying, or driving. Additionally, the Veteran does not have a full college degree which would limit his ability to perform certain office-type work and he would be limited to sitting and concentrating due to his physical and mental abilities. Therefore, the Board finds a TDIU is warranted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.