Citation Nr: 18131212
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-29 966
DATE:	August 31, 2018
ORDER
Entitlement to compensation under 38 U.S.C. § 1151 for laminectomy residuals, lumbar spine, degenerative joint disease (DJD) is denied.
Entitlement to service connection for sciatica claimed as due to a lumbar spine disability is denied.
REMANDED
Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss is remanded.
Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded.
Entitlement to an effective date earlier than March 25, 2010 for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 
FINDINGS OF FACT
1. The preponderance of the evidence demonstrates that the Veteran does not have additional lumbar spine (back) disability associated with or the result of the laminectomy conducted in April 1984. 
2. Entitlement to service connection for sciatica cannot be established secondary to a non-service connected back disability.
CONCLUSIONS OF LAW
1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for an additional back disability caused by the laminectomy surgery conducted in April 1984 have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017).  
2. The criteria for entitlement to service connection for sciatica claimed as secondary to lumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from July 1967 to January 1968.
This case comes before the Board of Veteran’s Appeals (Board) on appeal from a January 2015 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).
In an August 2016 statement, the Veteran withdrew his Board hearing request. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704 (e) (2017).
The Veteran’s claim for an earlier effective date for TDIU is inextricably intertwined with his PTSD and bilateral hearing loss increased rating claims, which is being remanded for additional development; thus, the earlier effective date claim must be remanded as well.
Service Connection
Legal Criteria 
Compensation under 38 U.S.C. § 1151  
In pertinent part, section 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran’s willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. 
In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b).
To establish causation, 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, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1).
Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). Additional disability or death caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). 
The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that 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 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 (as explained in paragraph (c) of this section); 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 hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 
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. 38 C.F.R. § 3.361 (d). 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 § 17.32 of this chapter.
Service Connection Sciatica
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).
A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § .310 (a).  Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  See Allen v. Brown, 7 Vet. App. 439 (1995).
VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154 (a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 
Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record.  See 38 U.S.C. § 7104 (a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
Compensation under U.S.C. § 1151 
The Veteran seeks compensation under 38 U.S.C. § 1151 for an additional back disability as the result of surgery conducted in April 1984. The Veteran contends that his chronic back pain is due to a mistake performed at the VA during a back surgery performed in April 1984.
In this instant case, the Veteran argues that the VA admitted to negligence and a mistaken course of surgical treatment in the April 1984 operation report. 
An April 1984 VA operation report indicated that “an error in the interpretation of the sacrum was made “requiring resection of the L4 lamina” and then moving “inferiorly by one level” that then exposed a “markedly indented L5… herniated nucleus… extruding almost spontaneously as we resected.”
In November 2012, the Veteran was afforded a VA examination. The examiner noted that the records were reviewed and he examined the Veteran. After review of the records the examiner opined that the claimed additional back disability was less likely as not caused by or became worse due to VA treatment. The examiner’s rationale was that the operation report stated that during the procedure “an error in the interpretation of the sacrum was made.” It further stated that “after resection of the L4 lamina and identification of the 3, 4-disc space which appeared normal as well as the floor root.” Removal or resection of the lamina was not a cause of chronic back pain, however the “floor root (inferior nerve root) appeared normal… and the 3,4-disc space was not entered.” The examiner also opined the claimed additionally back disability was less likely than not the result of carelessness, negligence, lack of skill or similar incidence of the fault on the part of the attending VA personnel. The examiner’s rationale was that the Veteran unfortunately developed chronic pain after the first surgery in 1979. He was declared unemployable by a judge. He then had a second surgery in 1984 because of the chronic pain. Although the surgeon did resect the L4 lamina, he did not enter the disc space and did not damage the nerve roots. He proceeded with the surgery and used the resection of the L4 to expose the herniated disc inferior to that level. However, the Veteran continued to have chronic back pain postoperatively despite the decompression of the nerve root. 
The additional disability is at less likely than not a result from an event that could not have reasonably been foreseen by a reasonable healthcare provider.  The rationale was that during the surgery the L4 lamina was resected based on the appearance of anatomic landmarks after the patient was draped and anesthetized. The veteran had a previous surgery in 1979 and it is common practice and within the standards of care to enter the surgical area through a previous scar. It is unfortunate, but the surgeon made an incision superior to the targeted disc space based on his interpretation of the anatomical landmarks.
Furthermore, the examiner opined that it was less likely than not that there was a failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability that allowed the disease or disability to continue to progress. The examiner’s rationale was that timely and appropriate examinations were made by multiple health care providers several times a day during the postoperative period. The examiner concluded that the appropriate treatments were administered. He further noted that it was unfortunate that this Veteran developed chronic back pain after his first surgery in 1979 and 1984 and had continued to the present. The examiner indicated that although the surgeon did resect the L4 lamina, he did not enter the disc space and did not damage the nerve roots. He noted that the surgeon proceeded with the surgery and used the resection of L4 to expose the herniated disc inferior to that level. The examiner indicated that the Veteran continued to have chronic back pain postoperatively despite the decompression of the nerve root. He noted that several complications with lumbar surgery that were considered to cause chronic pain. Those included lumbar decompression back surgery considerations, scar tissue considerations, and postoperative rehabilitation. The examiner concluded that timely and appropriate examinations were made by multiple health care providers several times a day during the postoperative period. He concluded that the appropriate treatments were administered. 
In this case, as discussed above, the weight of the competent and probative evidence does not demonstrate that the performance of the laminectomy in April 1984 by VA was careless, negligent, lacked proper skill, was an error in judgment, or that there was similar instance of fault on VA’s part, or that the proximate cause of the Veteran’s chronic back pain were events that were not reasonably foreseeable. The record includes the April 1984 consent form signed by the Veteran.
The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, at 435 (2011), as to the specific issues in this case, the etiology of a chronic back disability and its residuals fall outside the realm of common knowledge of a lay person. A lay witness similarly cannot establish competent opinions as to fault or foreseeability in regard to medical treatment and its consequences. See Jandreau v. Nicholson, 492 F.3d 1372, 1373. Consequently, as the Veteran does not have medical training or credentials, his own assertions have no probative value.
The Board has considered the Veteran’s contentions. The medical evidence, however, in pertinent part the November 2012 VA examination and opinion, does not support the Veteran’s contentions that he suffered additional back disability due to the carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals in the April 1984 or as the result of an event not reasonably foreseeable. As such, the weight of the evidence is against the claim, and the criteria for entitlement to compensation under 38 U.S.C. § 1151 have not been met.
3. Sciatica 
The Veteran contends that his sciatica disability is caused by his back disability. 
This claim is dependent upon a grant of service-connection for a lumbar spine disability. In light of the disposition reached above, that service connection is not warranted for a back disability, secondary service connection is not available. 
The Board finds also find that direct and presumptive service connection is not warranted as there is no indication the Veteran experienced this problem during service or within a year of service. Rather, post-service treatment records reflect the Veteran complained of sciatica in May 1978, over ten years after his separation of service. There is no medical evidence indicating any other relationship between his sciatica disability and service. 
The preponderance of the evidence is against the claim, sciatic disability did not have its inception during service, or within one year of service, and is not shown to be related to service in any other way. The appeal is denied.
REASONS FOR REMAND
1. Hearing Loss 
The Veteran contends that his bilateral hearing loss disability is more severe than currently evaluated. 
In September 2012, the Veteran was afforded a VA examination. On the authorized audiological evaluation in 2012, pure tone thresholds, in decibels, were as follows:
 	 	 	HERTZ	 	 
 	500	1000	2000	3000	4000
RIGHT	 15	30 	 85	85 	90 
LEFT	30 	 55	 95	95 	95 
 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 60 percent in the left ear. The examiner opined that the Veteran’s hearing loss impact ordinary condition of daily life, including his inability to work.  The examiner noted that the Veteran misinterprets information and stays secluded.
On February 2013 notice of disagreement (NOD), the Veteran wrote that communication with people was nearly impossible. He indicated that his hearing aids did not help him with his hearing loss disability. 
In light of the Veteran’s contentions that his condition is worse, the Board finds that new VA examination is necessary to assesses the current severity of the Veteran’s service-connected bilateral hearing loss disability.
2. PTSD
The Veteran asserts that his service connected PTSD should be rated at 100 percent disabling. 
In September 2012, the Veteran was afforded a VA examination. The Veteran reported that he lived in a tepee on vacant land that he owns. He indicated that he was estranged from his three children. He reported that he deliberately lived in a rural area and had a dog that he cared for. He indicated that he did not have and did not want friends or social activity. The Veteran reported that his PTSD symptoms had a serious impact on his work performance. The examiner noted that the Veteran had a history of alcohol dependence. The Veteran now drinks once every 10-20 weeks. The examiner noted that the Veteran’s PTSD symptoms caused an occupational and social impairment with reduced reliability and productivity.  The Veteran’s PTSD symptoms were anxiety, mild memory loss such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships.
On March 2014 employability assessment, the examiner indicated that the Veteran had very little contact with his children or grandchildren. When the Veteran’s grandchildren came to visit he requested that they did not come back again. The Veteran did minimal driving and majority of his driving was done by his caregiver. The Veteran reported that he had just gotten out of jail due to a domestic violence arrest as a result of getting into an argument with his caregiver. The Veteran indicated that he was now on probation for 18 months and was required to take an anger management classes.
In light of the evidence indicating that that the Veteran’s condition may have worsened, the Board finds that new VA examination is necessary to assesses the current severity of the Veteran’s service-connected PTSD disability.
The matters are REMANDED for the following action:
1. Obtain updated VA treatment records and associate them with the electronic claims file.
2. Schedule the Veteran for a VA examination to determine the current severity of his bilateral hearing loss. The claims file should be made available to the examiner. All indicated tests and studies should be completed. The examiner must describe all pertinent symptomatology.
3. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of her service-connected PTSD disability. The claims folder and copies of all pertinent records should be made available to the examiner. All indicated tests should be performed. The examiner is requested to delineate all symptomatology associated with, and the current severity of the Veteran’s PTSD disability.


 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Baxter, Associate Counsel 
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