Citation Nr: 21065192 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-44 801 DATE: October 25, 2021 ORDER Compensation under 38 U.S.C. § 1151 for a low back disability is denied. FINDING OF FACT The evidence of record is insufficient to show that the Veteran developed an additional back disability (or aggravated an underlying back disability) as a result of medical treatment (cardiac stress test) he received in the VA North Texas Health Care System (HCS) on November 8, 2013. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a low back disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to January 1972. This appeal was previously before the Board in March 2019. The appeal was remanded to obtain the Veteran's Social Security Administration (SSA) records. Specifically, the Board noted that in the August 2017 VA Form 9, the Veteran stated that his lumbar spine disability had increased to such a point that he started to receive disability benefits from SSA. At that time, the SSA records had not yet been associated with his claims file and remand was required to obtain those records so that the Board could make a fully informed decision. The Board notes that the Veteran's outstanding SSA records were associated with the claims file in October 2019. As such, the Board finds that there has been substantial compliance with the March 2021 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's § 1151 Claim is denied. The Veteran asserts that a November 8, 2013 exercise tolerance test (ETT), performed at the VA North Texas HCS, required him to walk on a treadmill incline for about 20 minutes, which caused him to develop chronic back pain. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service connected. A disability or death is a qualifying additional disability or qualifying death if (1) the additional disability or death was not the result of the Veteran's willful misconduct, (2) the additional disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and (3) the proximate cause of the additional disability or death was either 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 an event not reasonably foreseeable. See 38 U.S.C. § 1151. VA treatment records show that the Veteran reported a 1995 lumbar spine surgery, with a redo surgery. However, there do not appear to be any medical records associated with that procedure. The Veteran's VA treatment records show that he underwent a cardiology stress test in November 2013, which included an ETT that required him to walk on an inclined treadmill for about 20 minutes. In December 2013, he reported that he had spasms to the lower back and felt like he had a pinched nerve, and that they occurred after his stress test procedure. In addressing an 1151 claim, the additional disability element is the first threshold element for eligibility. If no additional disability is found, there is no need to address the fault/negligence or reasonable foreseeability elements. Rather, the 1151 claim cannot succeed. To address the additional disability prong, the Board must consider the Veteran's back disability immediately before the stress test and then after the test. Here, the overall evidence clearly shows that the Veteran's back was problematic before the stress test as it had required surgery, and it was symptomatic after the stress test. Here, a medical opinion was obtained to address the Veteran's back disability and whether the stress test caused an additional disability. The Board has reviewed the Veteran's concerns about the examination, namely that the examiner did not perform an extensive back examination, such as requiring the Veteran to take his shirt off. However, the purpose of the examination was not to determine the condition of the Veteran's back in August 2015, but rather to ascertain whether an additional back disability resulted from the stress test that was administered by VA. It is the difference between treating medicine and forensic medicine. As such, the failure to require the Veteran to take his shirt off does not disqualify the adequacy of the medical opinion categorically. Rather, the Board must consider the examiner's reasoning in the examination report to determine the adequacy of the opinion. As will be discussed, the examination report was well-supported and contained a detailed review of the Veteran's medical history. Here, the Veteran was afforded a VA examination in August 2015. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion. Before providing his opinion, the examiner noted the Veteran's medical history regarding his lower back. The examiner specifically noted that the Veteran underwent a laminectomy in 1996, with a subsequent redo surgery. The examiner also pointed to numerous VA treatment records showing complaints of low back pain, prior to the 2013 ETT. The examiner also acknowledged the VA treatment records that showed the Veteran's complaints of pain and stiffness after the ETT. Regarding the ETT, the examiner opined that given the Veteran's medical history and symptomatology, it was less likely than not that this was an inappropriate consultation for a cardiac evaluation. The examiner noted an April 2014 VA MRI, which showed results that suggested chronic, rather than acute changes and are known to occur after spinal surgery. The examiner also pointed out that the Veteran's complaints of low back pain with lower extremity radiculopathy is a known long-term complication of discectomy and laminectomy. Regarding whether there was aggravation, other than related in time to the ETT, the evidence suggests there are no symptoms or findings to suggest the current symptoms are not known complications of the previous surgery or the manifestation of the MRI lumbar arthritis. The examiner opined that the Veteran more than likely would have had the back symptoms whether or not he had the ETT. The Veteran was treated with medication, chiropractic manipulation, TENS, and ESI, and those modalities are not extraordinary in scope. Here, the Veteran was shown to have back symptoms prior to the ETT and his prior laminectomy and findings of chronic lumbar disc disease explained his current symptoms. The Board has reviewed the SSA records provided by the Veteran, which show that he applied for SSA benefits after the November 2013 stress test. They also show that he was granted SSA benefits in June 2014, due to a back disability. However, there was no indication that the 2013 ETT aggravated the already existing low back disability. The Veteran has asserted that he has not been the same since the 2013 ETT, and reported that he would love to be like he was before that day and that his VA records do not show that he suffered from similar back symptoms. See VA Form 9 received August 24, 2017. However, a review of his VA treatment records shows consistent complaints of low back pain from January 2010 to the time of the 2013 ETT. As such, the Board finds that the contemporaneous evidence of record does not support the Veteran's assertion that he did not experience the same type of symptoms before the 2013 ETT as he did after. The Board does acknowledge that the Veteran did not complain of radiculopathy of the right leg prior to the stress test, but the August 2015 VA examiner explained that lower extremity radiculopathy is a known long-term complication of a laminectomy, which the Veteran underwent in 1996, as well as lumbar arthritis. Here, the VA examiner's opinion was provided after a review of the Veteran's claim's file, based on well-reasoned rationale, supported by evidence of record, and has not been contradicted by any other competent medical opinion. As such, it is afforded great probative weight. Here, the evidence of record does not show that the 2013 ETT the Veteran received from the North Texas HCS on November 8, 2013, caused an additional disability in his lower back. The Board acknowledges the Veteran's complaints of low back symptoms after the 2013 ETT, but as previously discussed, he consistently complained of low back pain prior to the ETT. Further, the VA examiner explained that given the Veteran's medical history and symptomatology, it was appropriate for the cardiac evaluation to include an ETT. The examiner also explained that the April 2014 VA MRI, which showed results that suggested chronic rather than acute changes and are known to occur after spinal surgery; that lower extremity radiculopathy is a known long-term complication of discectomy and laminectomy; and that other than related in time to the ETT, there was no suggestion that the current symptoms were not known complications of the previous surgery or the manifestation of lumbar arthritis. Lastly, the examiner reported that the Veteran more than likely would have had the back symptoms whether or not he had the ETT. The examiner added that since the Veteran has had symptoms prior to ETT and findings of chronic lumbar disc disease to explain these symptoms, it was less than likely the back condition was aggravated by the VA ETT While the Veteran believes that his low back condition was aggravated by the 2013 ETT he received on November 8, 2013, he lacks the medical training and expertise to provide a complex medical opinion as to whether his low back disability was aggravated by medical treatment. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite aggravation element of the 1151 claim. For that reason, a VA medical opinion was obtained, but as discussed above, the opinion weighed against the Veteran's claim. Further, VA treatment records showed consistent complaints of chronic back pain prior to the ETT. Here, the Veteran has not shown he had an additional low back disability caused by the stress test at VA on November 8, 2013. Accordingly, compensation under 38 U.S.C. § 1151 for a low back disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.