Citation Nr: 22017424 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-33 503 DATE: March 25, 2022 ORDER Entitlement to service connection for a low back disability, diagnosed as degenerative arthritis and degenerative disc disease of the lumbar spine, is granted. Entitlement to compensation under 38 U.S.C. §1151 for a neck disability, diagnosed as degenerative arthritis and degenerative disc disease of the cervical spine, is granted. FINDINGS OF FACT 1. The evidence is at least in relative equipoise regarding the onset of the Veteran's current back condition. 2. The evidence is at least in relative equipoise regarding whether the Veteran's neck condition is an additional disability resulting from VA treatment, specifically Olanzapine withdrawal, due to an untimely refill. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for compensation under 38 U.S.C. §1151 for a neck disability are 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 November 1973 to January 1978. This appeal to the Board of Veteran's Appeals (Board) arose from a September 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In March 2019, the Board reopened the finally disallowed claim of service connection for a back disability. The Board then remanded the reopened claim, along with the claims of entitlement to compensation under 38 U.S.C. §1151 for a psychiatric disorder and residuals of neck injury for further evidentiary development. During the pendency of that remand, the Agency of Original Jurisdiction (AOJ) granted compensation under 38 U.S.C. §1151 for a schizoaffective disorder and other specified dissociative disorder. In September 2021, the Board remanded the remaining claims for further development. The Veteran's representative has submitted a Privacy Act request during the pendency of the remand. It has been acknowledged. Privacy Act requests must typically be processed prior to appellate action and the current request remains pending. See 38 C.F.R. § 20.1200. However, as the decision contained herein is fully favorable to the Veteran, the Board finds that he would not be prejudiced by the issuance of this decision prior to the completion of the FOIA request. Service Connection Low Back Disability A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). The Veteran seeks service connection for a back disability. Evidence of record establishes that he has a current diagnosis of degenerative arthritis and degenerative disc disease (DDD) of his lumbar spine. He asserts that he began experiencing back pain during basic training due to physical activity. The Board determines that heavy physical activities involved in training is consistent with the types, places, and circumstances of the Veteran's service. See 38 U.S.C. §1154(a). Regarding whether there is a nexus, a March 2019 examiner provided a negative nexus opinion and, in so doing, explained that the present diagnosis is consistent with the Veteran's age and the effect of wear and tear from his occupation, which involved lifting heavy loads. The examiner noted that medical literature reports that strenuous physical activity and heavy lifting have been associated with the high risk for lower back spine strain and degenerative disease of spinal structures. Another opinion was obtained in November 2021. In that opinion, that examiner opined that the lumbar spine condition was less likely than incurred in service. The examiner reasoned that the degenerative changes of the spine are from age related deterioration of the spine and that the separation examination was absent of any complaints of back abnormalities. As shown above, the opinions on record do not take into account the Veteran's statements regarding experiencing back symptoms during service due to his physical activity. Relying on the absence of evidence in medical records, without regard for lay statements, to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Dalton v. Peake, 21 Vet. App. 23 (2007). Of important note, the March 2019 examiner proffered medical literature stating that strenuous physical activity and heavy lifting have been associated with lower back strain and degenerative disease. The examiner also stated that wear and tear from the Veteran's occupational activities led to his condition. As stated, the Board finds that the Veteran's military duties, especially during basic training, would include engaging in heavy physical activities. After a thorough consideration of the evidence of the record, the Board finds that the evidence is at least in relative equipoise regarding the etiology of the Veteran's condition. The Board observes that the Veteran's accounts of his symptoms during and after service, when considered in tandem with the symptoms and diagnosis identified in the treatment records and examinations, and information provided in the medical opinions, nonetheless, raise a reasonable doubt as to the initial onset of his current low back condition. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his low back disability is due to his service. Accordingly, the criteria for service connection for a low back disability are met, and entitlement to service connection is granted. Entitlement To Compensation Under 38 U.S.C. § 1151 A Neck Disability Under 38 U.S.C. § 1151, compensation should be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability was service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and was caused by hospital care, medical or surgical treatment, or examination and the proximate cause was due to (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § § § 1151(a). Causation requires evidence that the hospital care or medical or surgical treatment resulted in an additional disability. Merely showing that a veteran received care or treatment and that there is 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 VA's part in furnishing medical treatment proximately caused additional disability, it must be shown that the medical treatment caused additional disability; and that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the medical treatment without the veteran's, or in appropriate cases the Veteran's representative's, informed consent. 38 C.F.R. § 3.361(c), (d)(1). In this matter, the Veteran has asserted that his neck condition is related to a fall he sustained while going through withdrawal from Olanzapine. VA has determined that the Veteran did experience Olanzapine withdrawal due to the result of VA treatment (untimely refill of the medication). He is receiving compensation under §1151 for a psychiatric disorder resulting from that withdrawal. The evidence shows that the Veteran has a current diagnosis of a neck disability (degenerative arthritis and DDD). Regarding whether his neck condition was due to the Olanzapine withdrawal, the March 2019 VA examiner explained that the Veteran may have injured his neck during the documented dissociative episode related to withdrawal from Olanzapine, but could not resolve the issue about neck pain without resorting to mere speculation. In rendering that opinion, the examiner is referencing to a September 2014 VA treatment note, in which the Veteran shares that, in October or November 2013, he had a withdrawal episode in which he does not remember what happened in 15 hours of his life. In September 2015, it was reported that the Veteran complained of chronic neck pain "[status post] withdrawal from Olanzapine." See September 2015 VA Medical Treatment Records (CAPRI). In September 2020, the VA examiner noted that the Veteran's reported symptoms of dizziness, loss of balance, insomnia, tremors, and memory loss are symptoms of Olanzapine withdrawal. In November 2021, the examiner opined that it was less likely than not that the Veteran's neck condition was proximately due to, or aggravated by, his psychiatric disorder. The examiner explained that mental health disorders do not have any pathophysiological correlation in causing degenerative changes of the spine. The degenerative changes of the spine are from age related deterioration of the spine. Thus, the diagnosed DDD and DJD of the cervical spine condition were less likely than not aggravated beyond its natural progression by the Veteran's schizoaffective disorder and other specified dissociative disorder. Regarding any relation to Olanzapine withdrawal, the examiner stated that it does not cause degenerative joint disease or disc disease of the spine. Review of the pharmacological side effects of Olanzapine does not demonstrate degenerative joint diseases being a side effect of olanzapine withdrawal. Importantly, however, the November 2021 opinion does not address the contention regarding the fall due to symptoms of the withdrawal being a factor into the development of the Veteran's neck condition. Thus, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran's neck disability was the result of the symptoms he experienced during his withdrawal. The March 2019 opinion noted that it was possible that the Veteran fell and injured his neck during the withdrawal episode. The September 2020 examiner stated that dizziness, loss of balance, and memory loss were symptoms of Olanzapine withdrawal. VA treatment records document the Veteran's reports of loss of time during withdrawal and neck pain after the episode. Accordingly, in resolving all reasonable doubt in favor of the Veteran, the Board finds his neck disability is an additional disability resulting from the Olanzapine withdrawal, which has been found to be due to VA treatment of untimely refilling his medication. Thus, compensation pursuant to 38 U.S.C. §1151 for a neck disability is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Middleton, Syesa T. 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.