Citation Nr: 21065165 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-29 344 DATE: October 25, 2021 ORDER Compensation benefits under 38 U.S.C. § 1151 or, secondary service connection for pain and neurological disability of the right and left lower extremities, is granted. FINDING OF FACT As a result of an October 2016 VA lumbar puncture, the Veteran developed chronic pain and neurological symptoms in the right and left lower extremities that were caused by negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or, alternatively, are secondary to a low back disability for which entitlement to compensation benefits under 38 U.S.C. § 1151 has already been established. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for disability of the lower extremities manifested by chronic pain and neurological symptoms, or, alternatively, secondary service connection are met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.310, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1976 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer employed in that capacity. The Board then remanded the appeal in March 2020 and in a November 2020 rating decision, entitlement to compensation benefits under 38 U.S.C. § 1151 for a lumbar spine disability was established. The Veteran was then afforded another hearing in July 2021 before the undersigned VLJ. As a final introductory matter, the issue of entitlement to service connection for bilateral hearing loss was also previously remanded by the Board in March 2020. However, the Veteran has since opted into the Appeals Modernization Act (AMA) system for that issue and, therefore, that issue will be addressed in a separate decision, as appropriate. 1151 Eligibility Turning now to the merits of the current claim, when a veteran suffers additional disability as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability were service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. There are three main requirements a claimant must establish for entitlement to benefits under section 1151. First, the Veteran must experience a qualifying additional disability or death that was not the result of the veteran's willful misconduct. Second, the additional disability or death must have been caused by VA medical treatment, care, or examination (an actual or "but for" causation requirement). Finally, the proximate cause of the Veteran's additional disability or death must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part" of VA or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151(a). Proximate causation can be established by a showing of "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 caused for the additional disability or death." 38 C.F.R. § 3.361(d)(1). In this case, the Board first finds that the October 2016 VA lumbar puncture attempts resulted in additional disability in the form of chronic pain and neurological symptoms in the Veteran's lower extremities. In this regard, in the weeks and months following the lumbar puncture, the Veteran sought treatment for pain radiating from his low back down his right leg and tingling in his legs that he did not experience prior to the lumbar punctures. For example, in October 2016, the Veteran presented for treatment limping and reporting "a lot of pain because of [the] spinal tap," stating that he did not have any pain in his back or leg before the procedure. In November 2016, the Veteran was observed to have fasciculations and possible slight atrophy of the right calf, and in December 2016, he reported that intermittent tingling in his legs and that his legs did "not feel strong like they did." In January 2017, the Veteran was assessed to have right piriformis syndrome and myofascial pain syndrome, and he continued to report numbness and weakness in his legs in June 2017. More recently, a September 2020 VA examiner assessed radiculopathy affecting the right sciatic nerve, and subsequent VA treatment notes show ongoing treatment of the right piriformis and radiculopathy. Though left-sided radiculopathy or piriformis syndrome has not been diagnosed, the Veteran has provided competent testimony in July 2021 regarding left leg symptoms including pain that feels like a lightning bolt, jabbing, an explosion, or millions of little needles. Clinical evidence also shows objective findings of tenderness to palpation of the left sacroiliac joint, diminished or absent reflexes in the left leg at the patella and achilles, and an equivocal straight leg raise test on the left. Additionally, left foraminal stenosis at L4-5 was demonstrated on imaging. Significantly, prior to the October 2016 lumbar puncture, the record shows that the Veteran did not have lower extremity neurological complaints or findings. Instead, he was found to be neurologically intact during routine visits, reported daily exercise, had a normal gait, and was observed to have normal muscle mass and tone, including in October 2013, April 2014, June 2015, January 2016 and/or June 2016. Thus, even if diagnostic testing in November 2016 showed disc disease and degeneration of the lumbar spine, the Veteran was asymptomatic prior to the October 2016 lumbar puncture. Accordingly, the Board finds the medical evidence to be probative in showing that the Veteran's bilateral lower extremity symptoms are an additional disability for purposes of a 38 U.S.C. § 1151 claim. The next question for the Board is whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility furnishing the care, treatment, or examination. In this case, the Board finds that there was. In this regard, a September 2020 VA examiner diagnosed right sciatic radiculopathy and found that the Veteran's chronic pain was the result of wrongdoing on the part of VA personnel, as evidenced by the fact that it took four attempts to successfully perform the lumbar puncture. The examiner noted that two attempts were blocked by bone, and one attempt struck a nerve that brought the Veteran "off the table." The examiner further noted that the Veteran had no pertinent complaints prior to the lumbar puncture, but subsequent to the procedure had significant pain and dysfunction. The Board is cognizant that VA examiners in October 2017 and October 2020 found that the Veteran's right lower extremity symptoms were not the result of fault or carelessness on the part of VA. Nevertheless, those examiners attributed the Veteran's right lower extremity symptoms to his low back disability and thus, the opinions are supportive of service connection as secondary to the section 1151 award for a lumbar spine disability. 38 C.F.R. § 3.310. In sum, based on the probative medical and lay evidence, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran's bilateral lower extremity disability manifested by chronic pain and neurological symptoms, is an additional disability caused by carelessness, negligence, lack of proper skill, or error in judgment during his October 2016 VA treatment visit. Or, alternatively, the Veteran's lower extremity symptoms are secondary to his lumbar spine disability. Accordingly, entitlement to compensation benefits for disability of the bilateral lower extremity manifested by chronic pain and neurological symptoms under 38 U.S.C. § 1151 or service connection as secondary to a lumbar spine disability is warranted. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.