Citation Nr: 18132351
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 17-12 030
DATE:	September 6, 2018
ORDER
Compensation under 38 U.S.C. § 1151 for right arm and hand disability is denied.
Compensation under 38 U.S.C. § 1151 for left arm and hand disability is denied.
Compensation under 38 U.S.C. § 1151 for right shoulder disability is denied.
Compensation under 38 U.S.C. § 1151 for left shoulder disability is denied
Compensation under 38 U.S.C. § 1151 for cervical spine disability is denied.
Compensation under 38 U.S.C. § 1151 for lumbar spine disability is denied.
REFERRAL
The Board finds that REFERRAL to the Agency of Original Jurisdiction (AOJ) is warranted for the following issues:  (1) Entitlement to service connection for right arm and hand disability to include as secondary to service-connected disability; (2) Entitlement to service connection for left arm and hand disability to include as secondary to service-connected disability; (2) Entitlement to service connection for right shoulder disability to include as secondary to service-connected disability; (3) Entitlement to service connection for left shoulder disability to include as secondary to service-connected disability; (4) Entitlement to service connection for cervical spine disability to include as secondary to service-connected disability; (5) Entitlement to service connection for lumbar spine disability to include as secondary to service-connected disability.
VA received these claims for service connection in May 2016.  Although the AOJ adjudicated claims for compensation under 38 U.S.C. § 1151 (same disorders) in July 2016, it did not adjudicate the claims for service connection until November 2017 and this adjudication was accomplished through issuance of a Supplemental Statement of the Case (SSOC).  This procedural course of action is prohibited under 38 C.F.R. § 19.31, which precludes the use of an SSOC to adjudicate claims in the first instance.  See 38 C.F.R. § 19.31(a) (“In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case.”).  Furthermore, a claim for compensation under 38 C.F.R. § 1151 is a claim separate and distinct from a claim for service connection (direct/secondary). See Anderson v. Principi, 18 Vet. App. 371 (2004) (“A section 1151 claim ‘constitutes a separate and distinct claim for VA benefits.’”).  Lastly, notwithstanding that compensation is sought for the same underlying disorders via 38 U.S.C. § 1151, the claims for service connection are not inextricably intertwined with the claims for compensation under 38 U.S.C. § 1151 as they involve distinct legal theories and factual bases.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2000).  Hence, the determination to remand the matters by the prior Veterans Law Judge considering this appeal was in error.  To correct this error, the above service connection claims (1-5) are REFERRED to the AOJ for appropriate action including issuance of a Rating Decision.  38 C.F.R. 19.9(b) (Referral for further action).
REMANDED
Entitlement to an evaluation in excess of 50 percent for bilateral pes planus on an extraschedular basis is remanded.
Entitlement to an evaluation in excess of 10 percent for right ankle disability is remanded.
Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU) is remanded.
FINDINGS OF FACT
1. The preponderance of the evidence is against finding that the Veteran has a qualifying additional disability of the right arm and hand caused by or the result of 2016 VA acupuncture therapy.
2. The preponderance of the evidence is against finding that the Veteran has a qualifying additional disability of the left arm and hand caused by or the result of 2016 VA acupuncture therapy.
3. The preponderance of the evidence is against finding that the Veteran has a qualifying additional disability of the right shoulder caused by or the result of 2016 VA acupuncture therapy.
4. The preponderance of the evidence is against finding that the Veteran has a qualifying additional disability of the left shoulder caused by or the result of 2016 VA acupuncture therapy
5. The preponderance of the evidence is against finding that the Veteran has a qualifying additional disability of the cervical spine caused by or the result of 2016 VA acupuncture therapy.
6. The preponderance of the evidence is against finding that the Veteran has a qualifying additional disability of the lumbar spine caused by or the result of 2016 VA acupuncture therapy.
CONCLUSIONS OF LAW
1. The criteria for compensation under 38 U.S.C. § 1151 for qualifying additional disability of the right arm and hand caused by 2016 VA acupuncture therapy are not met.  38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2017).
2. The criteria for compensation under 38 U.S.C. § 1151 for qualifying additional disability of the left arm and hand caused by 2016 VA acupuncture therapy are not met.  38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2017).
3. The criteria for compensation under 38 U.S.C. § 1151 for qualifying additional disability of the right shoulder caused by 2016 VA acupuncture therapy are not met.  38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2017).
4. The criteria for compensation under 38 U.S.C. § 1151 for qualifying additional disability of the left shoulder caused by 2016 VA acupuncture therapy are not met.  38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2017).
5. The criteria for compensation under 38 U.S.C. § 1151 for qualifying additional disability of the cervical spine caused by 2016 VA acupuncture therapy are not met.  38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2017).
6. The criteria for compensation under 38 U.S.C. § 1151 for qualifying additional disability of the lumbar spine caused by 2016 VA acupuncture therapy are not met.  38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Compensation Under 38 U.S.C. § 1151
Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected.  For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) 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; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013).
The following issues are addressed together below.
1. Entitlement to compensation under 38 U.S.C. § 1151 for left arm and hand disability.
2. Entitlement to compensation under 38 U.S.C. § 1151 for right arm and hand disability.
3. Entitlement to compensation under 38 U.S.C. § 1151 for right shoulder disability.
4. Entitlement to compensation under 38 U.S.C. § 1151 for left shoulder disability.
5. Entitlement to compensation under 38 U.S.C. § 1151 for cervical spine disability.
6. Entitlement to compensation under 38 U.S.C. § 1151 for lumbar spine disability.
The Veteran contends that he has qualifying additional disability of the arms, hands, shoulders, cervical spine, and lumbar spine caused by or the result of 2016 VA acupuncture therapy.
The question for the Board is whether it is at least as likely as not that the Veteran has additional disability caused by or the result of 2016 VA acupuncture therapy; and the proximate cause of the disability was either (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.
The Board concludes that, while the Veteran had VA acupuncture treatment in 2016, the preponderance of the evidence weighs against finding that this resulted in additional disability of the arms, hands, shoulders, cervical spine, and/or lumbar spine.  38 U.S.C. § 1151; 38 C.F.R. § 3.361.
The record shows that the Veteran underwent VA acupuncture treatments on four occasions between February 23, 2016 and April 28, 2016 to alleviate bilateral shoulder pain.  Relevant treatment records reflect that the Veteran had longstanding joint complaints of the arms, neck, and back both prior to and after his VA acupuncture—including arthritis.  The Veteran reported in May 2016 that he had generalized aches and pains, and that his arthritis had spread to all his joints.
However, a July 2016 VA medical opinion reflects that, while the Veteran had VA acupuncture treatments in 2016, he does not have additional disability of the arms, hands, shoulders, cervical spine, and/or lumbar spine caused by or a result of this treatment.  The examiner explained that there was no link between the Veteran’s post VA acupuncture problems and his 2016 VA acupuncture treatment given that the Veteran had a long history of whole body degenerative changes prior to his acupuncture treatment, including rheumatoid arthritis, and that the disabilities reported by the Veteran and shown were incongruous with the complications typically associated with acupuncture.
While the Veteran believes he has additional disability of the arms, hands, shoulders, cervical spine, and/or lumbar spine caused by or a result of VA acupuncture treatment, he is not competent to provide a diagnosis of additional disability or to determine the etiology of his increased pain symptoms after the VA acupuncture treatment.  These matters are medically complex, as they require medical education and knowledge of acupuncture treatment, its complications, and the musculoskeletal system.  Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007).  The Veteran’s assertion that acupuncture caused his arthritis symptoms to spread is uncorroborated by competent evidence, and the Veteran is not competent to opine as to this matter since it is not readily susceptible to lay observation, unlike a broken leg.  Id.
Consequently, the Board gives more probative weight to the July 2016 VA medical evidence because it was prepared by a skilled, neutral medical professional after review of the relevant medical records and contains a rationale for the conclusion reached.  There is no favorable medical evidence to weigh in this matter.
Accordingly, the claim is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b).
REASONS FOR REMAND
1. Entitlement to an evaluation in excess of 50 percent for bilateral pes planus on an extraschedular basis is remanded.
Addressed below.
2. Entitlement to an evaluation in excess of 10 percent for right ankle disability is remanded.
To ensure that VA has met its duty to assist the Veteran, the Board finds that remand is necessary to obtain outstanding VA and private treatment records relevant to the claims for increase for the feet (pes planus) and right ankle.  38 C.F.R. § 3.159.  The Board notes that the Veteran reported VA and non-VA treatment for his feet and right ankle.  However, VA treatment records dated since 2016 have not been obtained, and private treatment records have not been requested.  Therefore, remand is necessary.
3. Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU) is remanded.
Having considered the argument of the Veteran’s attorney, the Board finds that remand is necessary to fully ascertain the functional limitations attributable to the Veteran’s service-connected disabilities so that the Board may make a fully informed decision on whether these as likely as not preclude him from obtaining or retaining substantially gainful employment.
These matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from May 2016 to the Present.  All records/responses received must be associated with the electronic claims file.  
2. Ask the Veteran to complete a VA Form 21-4142 for Dr. Bagelli (Podiatry) and Dr. Arcand (Orthopedics).  Make two requests for the authorized records from these physicians, unless it is clear after the first request that a second request would be futile.  Note that the record contains no records for Dr. Bagelli; whereas the record includes no records for Dr. Arcand from December 2015.
3. Scheduled for a VA examination of his service connected bilateral pes planus, right ankle disability, and bilateral calcaneal spurs to address the functional impact of these disorders for the purpose of evaluating entitlement to TDIU.  The claims file must be reviewed and the review noted in the report.  Provide findings for the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for each lower extremity; indicate means of locomotion; and describe gait.
(a)  Obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving.
(b)  Ask the Veteran to describe in his own words the functional impact of his bilateral foot and right ankle disorders on his ability to engage in substantially gainful work.  Record his response in the report.
(c)  Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, indicate the “objective functional effects” of the Veteran’s service connected disorders only on his ability to perform the physical and mental acts required for employment.
(i)  As to physical acts, address functions of the upper and lower extremities to include the ability to sit, stand, walk, bend, carry, lift, grasp, pull and push.  Indicate whether the Veteran can lift, carry, push, or pull objects weighing up to 10 pounds and, if not, why.  Can the Veteran ambulate without a cane and, if not, is the cane required due to service-connected disability?  Please, do not state generically that the Veteran has “difficulty with prolonged standing, sitting, and walking” bur rather provide specific details, as appropriate, that identify the frequency, duration, and/or severity of any limitation arising from the service-connected disorders.  The Veteran has reported difficulty with stairs—are there objective findings that this is due to his service-connected disorders rather than other disability (e.g., knees, back, diabetes, etc.).
(ii)  Indicate the effect, if any, of the Veteran’s medications and/or treatment for pes planus, right ankle disability, and calcaneal spurs on his ability to perform the physical and mental acts required for employment.  Does the Veteran take narcotic-type medications for pain control that impair his ability to perform physical or mental tasks?  If yes, provide details.
(iii)  Indicate whether the Veteran has had any medical restrictions imposed on his activities due to service-connected pes planus, right ankle disability, and/or heel spurs.
The clinician should refrain from commenting on whether the Veteran is employable.
4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached.  The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 
5. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.

 
KRISTI L. GUNN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C.A. Skow, Counsel 

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