Citation Nr: 18160695
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 07-23 579
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a lumbar spine disability related to scoliosis is denied.
Entitlement to compensation pursuant to 38 U.S.C. § 1151, for additional left leg neurological disability as a result of VA treatment is denied.
Entitlement to compensation pursuant to 38 U.S.C. § 1151, for additional genitourinary disability as a result of VA treatment is denied.
Entitlement to compensation pursuant to 38 U.S.C. § 1151, for additional heart disability as a result of VA treatment is denied.
FINDINGS OF FACT
1. A preponderance of the competent and credible evidence of record shows that the Veteran’s claimed lumbar spine disability related to scoliosis is not related to active service.
2. A left leg neurological disability is not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care.
3. A genitourinary disability is not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care.
4. A heart disability is not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a lumbar spine disability related to scoliosis have not been met.  38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304.
2. The criteria for compensation under 38 U.S.C. § 1151 for a left leg neurological disability have not been met.  38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32.
3. The criteria for compensation under 38 U.S.C. § 1151 for a genitourinary disability have not been met.  38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32.
4. The criteria for compensation under 38 U.S.C. § 1151 for a heart disability have not been met.  38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In March 2012, the Board remanded all of the current issues on appeal for further development.  A September 2013 Board decision denied service connection for a lumbar spine disability and remanded the other issues for compliance with the prior remand directives.  The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims.  In a March 2015 memorandum decision, the Court affirmed the Board denial of entitlement to service connection for a lumbar spine disability as due to an in-service injury, but remanded the issue of entitlement to service connection for a lumbar spine disability as related to scoliosis.
In light of treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the Agency of Original Jurisdiction, the Board finds that there has been substantial compliance with the prior remand directives.  Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999).
1. Entitlement to service connection for a lumbar spine disability related to scoliosis
Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability.  Hickson v. West, 12 Vet. App. 247 (1999).  
Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992).  The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature.  For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.
As the Court previously affirmed the Board’s denial of the claim for service connection for a lumbar spine disability as due to an in-service injury, the remaining issue is limited to that of entitlement to service connection for a lumbar spine disability as related to scoliosis.
At a November 1973 enlistment examination, the Veteran did not indicate whether he had any recurrent back pain but evaluation of the spine was normal.  In February 1974, he slipped on a wet floor and hit his back on a trash can.  X-rays found spina bifida occulta at S1, but no evidence of acute injury.  Health records dated in May 1974, February 1975, March 1975, and July 1975 show complaints of low back pain.  A February 1975 X-ray showed that the spine was within normal limits.  A July 1975 X-ray showed slight scoliosis to the side.  At an April 1976 separation examination, he reported a history of recurrent back pain but evaluation of the spine was normal. 
After service, an October 1988 private X-ray showed mild degenerative disc disease at L4-L5 and mild levoscoliosis.  A November 2001 VA hospital discharge summary notes that physical examination at admission showed significant lateral shift with scoliosis on standing that resolved when lying down and a discharge diagnosis of rehabilitation for postural abnormality. 
In November 2015, the Board requested that the Veteran should be provided a VA examination to ascertain whether scoliosis existed prior to service and, if so, whether it was aggravated by service, or whether it is a congenital of development defect.  The Board also observed that service connection for congenital or developmental defects is prohibited unless the congenital or developmental defect was subjected to a superimposed disease or injury which created additional disability.  38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990).
In December 2015, a VA examiner remarked that the service medical records showed a scoliosis, but it appeared to be acute and limited.  There was no evidence of scoliosis prior to the in-service date of injury.  The examiner stated that the radiographic identification of scoliosis was most likely acute and limited due to a back-muscle spasm.  The examiner found X-ray evidence of a congenital spina bifida occulta, but the Veteran’s in-service fall caused a soft tissue contusion.  The examiner found no evidence that the Veteran’s fall had any impact or worsening of the spina bifida occulta.  The examiner further noted that 22 years after separation, the Veteran entered the VA system, and an X-ray at that time was normal without scoliosis.  Subsequent examinations did not show a finding of scoliosis.  There was no objective data or notations to support that the Veteran’s condition was chronic/ongoing or reoccurred within the first-year post separation, which indicated he had recovered from his 1974 injury.  The Veteran’s post service history was reported to have various physical labor type work environments that established opportunities for injury.
A VA examination was performed in September 2016.  The examiner diagnosed moderate degenerative disc disease.  The examiner noted that the service medical records contained an X-ray from 1976 which found a slight rightward scoliosis.  However, June 2016 MRIs of the lumbar and cervical spine were negative for findings of scoliosis.  The examiner specified that there was no documentation supporting a diagnosis of scoliosis prior to the Veteran’s active duty.  The examiner further opined that the radiographic identification of scoliosis during the Veteran’s active duty was most likely acute and limited due to a back-muscle spasm.  The examiner explained that sometimes improper positioning when taking an X-ray can be seen as a shift, but because of the Veteran’s history, it was more likely an acute muscle spasm.  The examiner reiterated that the Veteran’s positive finding for a slight rightward scoliosis while on active duty was most likely acute in nature and associated with muscle spasms.  The examiner reiterated that radiographic findings from 2006 through the present were without findings for scoliosis.  The Veteran did not have a scoliosis disability.
As a preliminary matter, a veteran is presumed in sound condition except for defects noted when examined and accepted for service.  Clear and unmistakable evidence that (1) the disability existed prior to service and (2) was not aggravated by service will rebut the presumption of soundness.  38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. 
Here, the evidence suggests that the Veteran had no pre-existing lumbar spine disorders upon entering active service as the November 1973 service induction physical report did not note any back disability.  Further, none of the medical examiners of record has opined that the Veteran’s claimed scoliosis pre-existed his entrance to service.
The Court has described the clear and unmistakable standard as an onerous one consisting of evidence that is undebatable.  Cotant v. Principi, 17 Vet. App. 116 (2003); Vanerson v. West, 12 Vet. App. 254 (1999).  As the evidence does not show the existence of a pre-existing spine disorder, the clear and unmistakable standard has not been met.  Therefore, the Veteran is presumed to have been sound upon entering active duty.  
The Board reiterates that as the Court previously affirmed the Board’s denial of the claim for service connection for a lumbar spine disability as due to an in-service injury, the remaining issue is limited to that of entitlement to service connection for a lumbar spine disability as related to scoliosis.  It is clear that the Veteran earnestly and sincerely believes that he has a current disability related to scoliosis.  The Board does not doubt in any way the sincerity of the Veteran’s belief.  Further, the Veteran is competent to report on the onset of his current observable symptomatology.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
Competency of evidence differs from the weight and credibility assigned to evidence.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify).  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).
In this instance, the Board finds that the opinions of the December 2015 and September 2016 VA examiners outweigh the opinion of the Veteran regarding any connection between his current back symptoms, scoliosis, and the Veteran’s service.  The opinions given by the December 2015 and September 2016 VA examiners are probative as they are definitive, based upon a complete review of the Veteran’s entire claims file, and supported by detailed rationale.  The examiners considered the Veteran’s own assertions regarding the etiology of his condition; and they both specifically included the Veteran’s assertions within the examination reports.  Additionally, the December 2015 and September 2016 VA examiners were objective professionals who had the medical training and experience necessary to offer an etiology opinion based on medical knowledge.  Accordingly, those opinions are found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion.  Prejean v. West, 13 Vet. App. 444 (2000). 
Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints.  Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  In this case, the Board finds that the most probative evidence of record weighs against establishing a medical nexus between military service and the Veteran’s back symptoms.  
Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability related to scoliosis.  Therefore, the claim must be denied.
1151 Eligibility
Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability in the same manner as if that additional disability was service-connected.  A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable.  38 U.S.C. § 1151(a). 
To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately.  38 C.F.R. § 3.361(b). 
To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability.  Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability 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 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 is the action or event that directly caused the disability, as distinguished from a remote contributing cause.  38 C.F.R. § 3.361(d).  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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the additional disability.  38 C.F.R. § 3.361(c).  It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, representative’s informed consent.  38 C.F.R. § 3.361(d)(1). 
Whether the proximate cause of a Veteran’s additional disability 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.  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 38 C.F.R. § 17.32.  38 C.F.R. § 3.361(d)(2).
2. Entitlement to compensation pursuant to 38 U.S.C. § 1151, for an additional left leg neurological disability as a result of VA treatment
3. Entitlement to compensation pursuant to 38 U.S.C. § 1151, for an additional genitourinary disability as a result of VA treatment
4. Entitlement to compensation pursuant to 38 U.S.C. § 1151, for an additional heart disability as a result of VA treatment
In July 2002 and September 2002 statements, the Veteran asserted that he wanted file claims for compensation under 38 U.S.C. § 1151 and had leg pain and numbness related to VA’s failure to treat a lumbar spine disorder prior to August 2002.  He contended that stress and sedentary lifestyle led to a heart attack in 2001. 
VA treatment records dated from 1995 to 2002 show that the Veteran complained of chest pain, urinary incontinence, chronic low back pain, and listed an assessment of mild bladder filling sensory defect in June 2002. 
A June 2002 private radiological evaluation report from R. C. T., M.D. detailed that the Veteran had had a large herniated disc since at least June 1999 based on a review of VA films from 1999 to 2002.  A June 2002 progress note from that provider listed an assessment of neurological deficits, noting that the slow progression of neurological deficits, subjectively characterized by the Veteran as severe pain, numbness, loss of bladder control, and loss of bowel control, over several hours after the VA discogram without the excruciating pain in the back sounded more like a chemical or allergic reaction or actual chemical damage. 
VA operative and pathology reports dated in August 2002 showed findings consistent with herniated intervertebral disc and removal of L4-L5 disc.
A February 2003 VA spine examination report listed an impression of chronic low back pain, status post herniated disc at L4-L5, and residual neurological deficit from the herniated disc at L4-L5. 
In a May 2003 statement, the Veteran clarified his claims for compensation were under 38 U.S.C. § 1151.  He asserted that a discogram test performed at the VA Medical Center in Little Rock, Arkansas, in 2002 caused his claimed neurological condition in the left lower extremity and urinary incontinence.  He further claimed that he had heart attack due to being placed in bed for over a year, stress from lifestyle, and from pain and lack of care caused by VA treatment. 
In a June 2003 VA heart examination report, the examiner, a VA physician, listed a diagnosis of arteriosclerotic heart disease with previous myocardial infarction and placement of a stent in coronary arteries.  After examining the Veteran and reviewing the claims file, the examiner acknowledged the Veteran’s assertions that prolonged bed rest had caused his heart disease.  The examiner opined that there was no medical evidence to substantiate prolonged bed rest as a cause of heart disease or heart attack.  The examiner also did not find any evidence that carelessness or negligence in the Veteran’s medical care caused that problem. 
In a June 2003 VA brain and spinal cord examination report, the Veteran indicated that his back problems began five years before when he fell on a coffee can.  He complained of current numbness, tingling, and weakness in the left foot.  He further reported loss of sensation to urinate, with incontinence, but no difficulty in emptying his bladder that developed after his January 2002 VA discogram.  The examiner, a VA physician, listed an impression of left lower extremity and left lumbar radiculopathy involving the L5 and S1 nerve roots on examination.  As the Veteran’s claims file was unavailable, the examiner indicated that it was difficult to answer the question of negligence.
Thereafter, VA treatment records dated from January 2002 to July 2003 pertaining the Veteran’s extensive lumbar spine treatment were associated with the record.  A January 2002 VA lumbar myelogram listed an impression of an 8-millimeter central/right paracentral posterior disc protrusion at L4-L5, bilateral facet osteoarthritis at L4-L5, mild spinal canal stenosis at L4-L5, and minimal to mild spinal canal stenosis at L2-L3, L3-L4, and L5-S1 secondary to disc bulge/facet osteoarthritis.  In January 2002, a VA neurologist indicated that there was no definite electrodiagnostic evidence of left L2-S2 radiculopathy or peripheral neuropathy in the recent EMG/NCV study. 
A January 2002 discogram report detailed that informed consent was obtained prior to the procedure and risk and benefits were discussed.  The informed consent record is also part of the record.  The VA certified physician’s assistant (PA-C) listed an impression of L4-5 small disk herniation with associated annual tear and bilateral facet degenerative changes; intact neural foraminal; and mild disk bulge visualized at L2-3, L3-4, and L5-S1.
The record shows that two separate VA neurosurgeons reviewed the Veteran’s test results in January 2002 and did not recommend any surgical intervention at that time.  It was noted that the Veteran would not benefit from surgery as there was no significant protrusion, a degenerative process in the disc, and no compression of the nerve roots.  In February 2002, the Veteran complained of spasms and numbness to the leg and requested to go to the emergency room.  An additional neurosurgery consultation with another VA neurosurgeon and spine specialist in March 2002 again showed recommendations that the Veteran be referred back to his primary treatment provider and that the Veteran did not need surgery at that time.  He was noted to receive right lumbar paravertebral trigger point and right piriformis muscle injections in March 2002. 
A May 2002 VA MRI report found interval increase in size of the central disc extrusion at L4-L5 with associated minimal to mild canal stenosis and stable bilateral facet osteoarthritis throughout the lumbar spine.  The Veteran’s degenerative disc disease at L2-L3 and minimal bilateral anterior/inferior neural foraminal narrowing at L4-L5 were both noted to be unchanged.  VA treatment notes dated in May 2002 listed diagnoses of lumbosacral radiculopathy and coronary artery disease. 
In a July 2002 statement, the VA Chief of Neurosurgery Service met with the Veteran after going through his case history and examining him.  The physician discussed different treatment options with the Veteran, advising him that if conservative treatment was not working, then surgery would become relevant.  The physician acknowledged the Veteran’s assertions of bladder problems after the January 2002 discogram and discussed that aspect of the case with a neuroradiologist, who explained that sometimes there was extrusion of the material used for the discogram through a weak spot in the annulus of the disc that may lead to some inflammatory processes and even some infection occasionally to where it can precipitate some symptoms related to his neurological complaints.  The physician discussed the risk and benefits involved with the surgery including infection, bleeding, paralysis, coma, stroke, and death. 
An August 2002 VA hospital discharge summary shows that the Veteran underwent a left L4-L5 hemilaminectomy, foraminotomy, and microdiscectomy, secondary to a left L4-L5 HNP.  Discharge diagnoses of chronic low back pain and HNP at L4-L5 were listed in the report.  His postoperative course was significant for urinary retention.  He refused insertion of a recommended Foley catheter.  He was provided with a Foley catheter and instructed to schedule follow-ups with urology, primary care provider, and neurosurgery.  The informed consent record for the procedure is of record. 
VA neurosurgery consult results dated in October and December 2002 showed weight gain, complaints of some discomfort in the lumbar spine region, pain and numbness in the legs, healed incision site, ambulation with a cane, reports that he could not tell when his bladder was full, increased pain after lifting a 50-pound feed bag, and notations that he was being followed by urology. 
In February 2003, a VA neurosurgeon listed an impression of chronic low back pain due to L4-L5 disc status post recent surgery with residual sciatic pain component.  It was noted that the Veteran had gained weight despite a previous warning that it would aggravate back pain.  He then received additional right lumbar paravertebral trigger point and right piriformis muscle injections.  A February 2003 VA X-ray revealed minimal disc narrowing at the L4-5 level. 
In a July 2003 VA examination addendum report, the examiner from the June 2003 VA brain and spinal cord examination report, noted a review of the claims file.  The examiner acknowledged that the Veteran developed weakness of dorsiflexion of the foot, loss of stool control (which got better), tingling in his buttocks, and loss of sensation of feeling that he needed to urinate with incontinence or any difficulty in emptying bladder (this did not return to normal).  The examiner noted that the Veteran probably had a long history of those problems and did have some disk problems during that time, which were not felt to be enough for surgery.  The examiner opined that it was difficult to say whether the discogram made those complaints much worse.  It was highlighted that cramping and spasms did not show up in the record until a full month after surgery, that his neurosurgeon examinations looked fairly well, and that it appeared his main post-surgical complaint was pain.  While there may have been some difficulty in communication amongst the parties involved, the examiner did not think there was clearly any negligence, noting that it was certainly not inappropriate to try other methods of pain control before going on to surgery. 
Additional VA treatment records dated from June 2002 to August 2003 detailed continued findings of mild sensory neurogenic bladder.  Prior to the Veteran’s August 2002 surgery, a VA physician assessed mild sensory defect with regard to filling sensation in June 2002.  Post void volume was noted to appear low on ultrasound but limited pelvic sonogram findings from April 2002 were negative and the Veteran was cleared for surgery. 
An August 2003 rating decision denied compensation benefits pursuant to 38 U.S.C. § 1151, for urinary incontinence, left lower extremity neurological impairment, and myocardial infarction.  The RO found that evidence failed to establish that VA medical services were the proximate cause of those additional disabilities.
In June 2005, the Veteran submitted a packet of information construed by VA as a petition to reopen his claims for entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151, for urinary incontinence, left lower extremity neurological impairment, and myocardial infarction. 
The submitted evidence contained a December 2004 private medical opinion from A. S., M.D., a physician with a specialty in neurosurgery.  After reviewing the Veteran’s records, the physician noted a long history of low back pain, dating back to at least 1999 (when an MRI showed a protruded L4-5 disc).  The physician specifically noted that low back pain without leg pain is not often cured or significantly relieved by surgery and the decision to try conservation therapy was appropriate at that time.  It was noted that the Veteran underwent a VA discogram in 2002 after his symptoms increased.  After the discogram, the Veteran was noted to then develop left leg pain and numbness and bowel and bladder incontinence.  While the bowel problem resolved, his bladder symptoms persisted.  Those symptoms were noted to strongly suggest cauda equine syndrome, which made a decision about surgery more urgent.  It was indicated that a repeat MRI in May 2002 showed progression of the L4-L5 disc rupture.  While records noted that the Veteran was to have surgery in Oklahoma City, no action was taken despite his continued pain and urological symptoms until surgery was performed in August 2002.  The physician reported that the Veteran had continued to have bladder problems since then and had been unable to void properly.  The physician concluded that the Veteran had a clear-cut picture of cauda equine syndrome with leg pain, leg numbness, and bladder problems.  The physician opined that the Veteran’s condition was one of the few absolute indications for disc surgery.  It was the physician’s professional opinion that VA neurosurgeons fell below the standard of care by ignoring those symptoms and delaying the surgery.  The physician concluded that the delay in surgery meant that the Veteran had a very small chance of relief of his bladder symptoms, and the result was that he was left with permanent problems in emptying his bladder. 
A June 2005 Stipulation for Compromise Settlement and Release of Federal Tort Claims Act Claims Pursuant to 26 U.S.C. § 2677 from the United States District Court in the Western District of Arkansas shows that the Veteran received a settlement in the sum of $67,500.00 from the United States Government.  Additional documents show that the Veteran filed a medical malpractice action against VA, alleging that the Little Rock VA Medical Center’s violation of the standard of care and negligence proximately caused him to sustain several different elements of damage. 
VA outpatient and inpatient treatment notes dated in 2005 detailed treatment for stenosis and unstable angina, chest pain, hypertension, and coronary artery disease status post CABG in December 2003 at a private facility.  He underwent a cardiolite stress test in January 2005 and percutaneous coronary intervention in August 2005. 
In a November 2005 rating decision, the RO reopened and denied the claims of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151, for urinary incontinence and left lower extremity neurological impairment.  However, the RO denied reopening the claim of entitlement to compensation benefits pursuant to 38 U.S.C. § 1151, for myocardial infarction, concluding that new and material evidence had not been received that would show negligence was a cause of his heart attack. 
A November 2005 memorandum from VA Office of Regional Counsel in Little Rock, Arkansas, detailed that payment had been made on a claim against the United States arising out of medical care furnished at the VA Medical Center in Little Rock relating to codes concerning failure to diagnose and delay in diagnosis. 
VA treatment records and informed consent record detailed that the Veteran underwent cardiac catheterization in March and August 2006 and a coronary angiogram in May 2007.  Past medical history included CABG in December 2003 at a private facility, three stents in August 2004, and one stent in August 2005.  A sampling of VA treatment notes dated in March 2006, August 2006, and May 2007 shows the Veteran was continent and had no difficulty with voiding. 
A May 2006 private EMG report from M. M. J., M.D. showed complaints of lower extremity pain, numbness, and weakness.  The EMG study results were noted to be consistent with a diagnosis of bilateral peroneal neuropathies but with no evidence to suggestive radiculopathy or plexopathy.  The Veteran was noted to report a problem beginning with discograms and having evidence of a disc abnormality at the L4-L5 level with spinal cord impingement.  The physician indicated that it was certainly possible that the patient had problems from spinal cord involvement affecting the peroneal nerves bilaterally.  The physician further detailed that those findings would also explain the Veteran’s history of bowel and bladder incontinence.
In May 2006 and September 2006, multiple VA examinations (genitourinary, peripheral nerves, and spine) were shown to be performed by an Advance Practice Registered Nurse (APRN) and cosigned by a VA urgent care physician.  After reviewing the file and examining the Veteran, the examiner diagnosed urinary incontinence in May 2006 and September 2006, opining in May 2006 that the disorder could not be related to the VA discogram in 2002 without resorting to mere speculation.  It was indicated that symptoms began after discogram and there was no evidence of carelessness, negligence, or misconduct in the Veteran’s care.  The examiner diagnosed peripheral neuropathy in May 2006, opining that it could not be related to the Veteran’s lumbar spine disorder without resorting to mere speculation.  The cited rationale was that the Veteran’s burning sensation in the feet was induced by sensory stimulation, which was suggestive of a cause other than lumbar nerve root impingement. 
In an August 2006 VA peripheral nerves examination report, a VA physician, after examining the Veteran and reviewing the claims file, indicated that the Veteran’s neurological examination showed no focal motor or sensory deficit and he had bilateral symmetrical deep tendon reflexes.  The examiner highlighted that the May 2006 EMG study was not performed by a neurologist, recommended a repeat EMG study of both legs, and indicated that he would then give a definitive opinion.  In an August 2006 addendum report, the same physician cited to a May 2006 EMG study, opining that the Veteran’s condition was less likely as not (less than 50/50 probability) caused by or a result of surgery.
In a December 2006 addendum report, the same physician cited to a May 2006 EMG study, opining that the Veteran’s complaints were at least as less likely as not (50-50 probability) caused by or a result of his back procedure.  The RO obtained yet another medical opinion from an additional physician in March 2007.  That physician noted that the physician who drafted the August and December 2006 reports discussed above found no EMG evidence of neurologic deficit, no hard evidence of deficit, and did not feel the Veteran’s problems were related to his previous back problems.  It was concluded that the Veteran instead suffered from peripheral neuropathy. 
In a September 2006 VA spine examination report, a VA neurosurgeon opined that it was more than 50 percent likely that the Veteran’s 2002 discogram caused a worsening of neurological problems and that the resultant delay in surgery of six to seven months caused him to have a permanent neurological problem, mainly a neurogenic bladder and chronic back pains.  In a November 2006 addendum, the neurosurgeon after reviewing the claims file highlighted that VA testing in 2004 showed that the Veteran’s bladder was not obstructed.  The physician strongly recommended a urology consult with urodynamics to clarify the question of incontinence.  In a February 2007 addendum, the same neurosurgeon, after reviewing additional sections of the claims file, again recommended a urology consult.  The neurosurgeon noted that in his experience, he had never seen a neurogenic bladder occurring as a complication of a discogram but that one could experience that complication from a laminectomy and retraction of the dura or hematoma.  It was further noted that findings described were a small paramedian disc that was not an emergent case.  In a May 2007 VA neurosurgery note, the same VA neurosurgeon noted that one EMG study was abnormal and one was normal.  There was decreased pinprick in the L5 and S1 dermatome on the left.  It was noted that the Veteran reported intermittently having to self-catheterize and wears a diaper due to accidents.  In a February 2009 VA medical opinion, the VA neurosurgeon again noted a belief that the discogram did not cause the Veteran’s disability. 
Additional VA treatment notes dated from March 2002 to July 2002 from a VAMC in Oklahoma City were associated with the record in 2007.  The record shows that an additional VA physician from the Oklahoma City VAMC reviewed the Veteran’s test results with the neurosurgery staff in July 2002.  The physician did not recommend any surgical intervention at that time and urged continuance of nonsurgical therapy measures.  An April 2002 letter from the Little Rock VAMC Director responded to the Veteran’s complaints with treatment at that facility. 
An April 2007 private lumbar spine MRI report found mild straightening the normal lumbar lordosis (probably positional), dessication of intervertebral disc spaces from L2-L5, mild loss of vertical height of L4-L5, small midline disc protrusion versus asymmetrical disc bulge at L4-L5, and moderate to marked degenerative facet arthropathy at L4-L5.
A May 2007 letter from a private cardiologist, H. P., M.D., noted that the Veteran had had long-standing coronary artery disease and underwent a CABG in December 2003 and a cardiac catheterization in June 2006.  It was his understanding that the Veteran, due to severe low back syndrome, has been persistently sedentary with minimal physical activity and exercise, which could be a risk factor contributing significantly to the progression of his known coronary artery disease. 
In a September 2008 statement, a VA physician reported that the Veteran did not have scoliosis. 
In a September 2008 private medical opinion, A. S., M.D., a physician with a specialty in neurosurgery, indicated that the Veteran’s bladder problems had not cleared.  The physician opined that the delay in surgery was not justified as bladder problems were one of the few indications for emergency back surgery.
A November 2008 VA peripheral nerves examination was performed by a VA Advanced Practice Nurse (APN) and cosigned by a VA emergency care physician.  After reviewing the file and examining the Veteran, the examiner listed a diagnosis of neuropathy and indicated that the etiology of the problem was a back injury.  In an attached November 2008 VA spine examination, the Veteran complained of intermittent urinary incontinence, nocturia, fecal incontinence, and lower extremity paresthesias, numbness, and weakness.  The examiner indicated that it would be mere speculation to specify which neurological deficits were related the Veteran’s in-service injury. 
A November 2008 VA lumbar spine MRI report showed evidence of left hemilaminectomy at L4-L5 without recurrent disc herniation. 
A January 2009 VA cardiology consult listed an assessment of coronary disease.  The treating physician could not say how much of his problem was made worse by his inactivity, stress, anger, and probably some PTSD.  Private treatment records detailed that he underwent another cardiac catheterization and angiography in August 2009. 
In a November 2009 statement, the Veteran again asserted that VA’s reluctance to treat his heart condition resulted in his continuing health problems such as huge weight gains and losses. 
VA treatment records dated from 2009 to 2011 detailed findings of lumbago, normal genitourinary system, daily angina, coronary artery disease, absence of left foot drop, complaints of numbness and tingling in the left leg, and chronic low back pain.  In May 2010, the Veteran denied incontinence.  However, in June 2010, he asserted that he catheterized himself daily and complained of bladder incontinence. 
An October 1988 X-ray report, associated with the record in 2011, from Pioneer Hospital listed an impression of negative for fracture, consistent with mild degenerative disc disease at L4-L5, and mild levoscoliosis.  VA treatment notes dated in January 2010 noted the Veteran’s assertion that he had never been bowel or bladder incontinent.
In December 2014, a VA examiner reviewed the Veteran’s treatment records.  After extensively citing from the records, the examiner opined that there was no additional disability of erectile dysfunction, urinary incontinence, additional neurologic disability, or cardiac issues due to VA treatment.  There was no evidence of medical negligence, bad medical judgment, not meeting the ordinary standard of medical care, or additional disability that was not reasonably foreseeable.  The examiner found that the Veteran’s primary issue was with urinary retention, not incontinence.  The examiner also noted that the Veteran was a heavy smoker, had a family history of coronary artery disease, and had a history of amphetamine abuse.
In August 2015, a VA examiner reviewed the records and opined that it was less likely than not that the Veteran sustained a neurological disability due to VA treatment in 1998.  The examiner stated that when the Veteran was seen in November 2001, he reported experiencing two falls and bowel incontinence.  The examiner opined that the incontinence could not have been significant, as bowel/bladder incontinence was apparently denied in the rehabilitation discharge summary dated in December 2001.  At that time, an MRI of the lumbar spine showed mild disc degeneration and disc bulging, and EMG studies showed no evidence of radiculopathy.  The examiner further noted that the Veteran was on high doses of opiates, which is a common cause of bowel dysfunction as narcotics slowed the bowel.  The examiner felt that narcotic bowel syndrome appeared to be the best explanation for the Veteran’s intermittent bowel incontinence.  As there was no evidence of neurological deficit on either examination or EMG studies, and as an MRI did not show a large disc that might cause cauda equina syndrome, the examiner stated that it appeared appropriate to only offer conservative therapy with a change to non-opiate agents.
The examiner further opined that it was less likely than not that the Veteran sustained neurological disability due to the January 2002 discogram.  The examiner described the nature of discograms and discussed the Veteran’s complaints of worsened and radiating left leg pain following the discogram; the Veterans complaints of increased bladder incontinence were also discussed.  However, the examiner stated that the Veteran had no evidence of weakness on examination and had normal deep tendon reflexes.  Both the discogram and a May 2002 MRI showed only a very small disc at L4-L5 which the examiner stated was too small to cause a cauda equine syndrome.  The examiner acknowledged that although the Veteran’s symptoms suggested a possible cauda equina syndrome, his post-void residual was low on ultrasound, indicating that the Veteran did not have a neurogenic bladder.  Therefore, the examiner disagreed with the summation of A.S., M.D., that the Veteran had cauda equine syndrome.  The examiner reiterated that the Veteran’s MRI, EMG, post-void residuals and urology consults showed that he did not have a cauda equina syndrome or a neurogenic bladder.
The examiner also opined that it was less likely than not that the Veteran sustained neurological disability due to the August 2002 back surgery.  The examiner commented on the medical records and stated that the Veteran’s bladder dysfunction was best explained by opiate-induced bladder dysfunction.  Although the Veteran reported persistent sensory loss in the left leg, with incontinence and subjective foot drop, EMG studies in 2006 and 2010 showed no evidence of lumbar radiculopathy and were notable only for mild peroneal palsy.  The examiner explained that peroneal palsy is usually caused by compression of the peroneal nerve at the knee by crossing the legs and was a common cause of foot drop.  While the Veteran reported during his 2010 EMG studies that he had had foot slapping that began after the discogram, the examiner found that review of clinic records was remarkable for the Veteran first reporting "slapping of the right foot with walking and catching of the toe on carpets" on April 16, 2010.  His EMG studies performed in June 2010 were consistent with a subacute course of less than three months duration and was not consistent with any injury that might have been sustained during the 2002 surgery.  Repeat EMG studies in June 2013 showed that the peroneal neuropathy had resolved, consistent with mild peroneal palsy causing subjective foot drop, that resolved.
A July 2016 VA urological evaluator concluded that “I think it is at least as likely as not that the cause of this patient’s erectile dysfunction and urinary tract symptoms (incontinence and now retention) is not due to any carelessness, negligence, lack of proper skill or errors in judgment from any medical treatment the patient received from the military or VA healthcare providers.”
An October 2016 VA cardiac evaluator concluded that it was not “at least as likely as not (50% probability or greater) that the Veteran has any additional heart disability (to include myocardial infarction) due to VA treatment.”
In November 2017, the claims file was submitted to a VA cardiologist for an expert medical opinion.  The cardiologist considered the Veteran’s assertion that following an August 2002 surgical procedure for chronic back pain, he was given bed rest and had inactivity that caused additional heart disability.  The cardiologist acknowledged that it was true that a sedentary lifestyle could increase risk for heart disease, but noted that the Veteran had multiple risk factors including tobacco use, hypercholesterolemia, and a family history of premature heart disease.  Further, the Veteran had an established history of symptomatic coronary artery disease in the setting of acute coronary syndrome which required stenting in March 2001, prior to any surgical procedure to the back.  Subsequent testing found normal LV function and no significant residual irreversible myocardial damage.  The examiner stated that graft closure and in-stent restenosis is common course of coronary disease progression and is expected, especially in a setting of ongoing tobacco use and other risk factors.  The examiner opined that there was no objective evidence of carelessness or negligence on the part of VA that caused additional heart disability.  The cardiologist agreed with the October 2016 and January 2008 assessments that it was unlikely that the Veteran’s neurological disability played a significant role in the progression of his coronary artery disease.
Also in November 2017, the claims file was submitted to a VA Chief of Neurology for an expert medical opinion.  The neurologist said that if the Veteran truly developed a new-onset or worsening leg symptoms and bladder incontinence, he should have been instructed to go to the emergency room, and it was unclear why he did not seek care at the local emergency room.  He further noted that if the Veteran developed a worsening left lower extremity radiculopathy in the time after the discogram was performed in January 2002, performing surgery by August 2002 was not an egregious delay in surgical treatment.  The neurologist explained that lumbar discectomy surgery is a surgery to remove the disc fragment that is inciting the inflammatory changes in the nerve roots that are compressed.  It is not a nerve operation, and it does not fix the nerve.  The neurologist further explained that the healing of a nerve is dependent upon the Veteran’s nerve ability to recover; most have improvement in pain weakness and numbness, but some patients will have persistent symptoms.  The examiner found no evidence of a post-void residual in the period immediately following the January 2002 discogram.  The neurologist observed that a June 2002 urology clinic note showed a subjectively and objectively functional bladder, not one of a dysfunctional neurogenic bladder.  The neurologist concluded that there was no evidence to support the Veteran’s claim.  The examiner summarized that the Veteran had a lumbar discectomy within 12 months of the radiculopathy.  The June 2002 urological evaluation called into any question any bladder dysfunction.  The neurologist felt that there were difficulties with communication between the parties involved, but there was not evidence to support a determination of negligence.  The examiner specifically disagreed with the comments from A.S., M.D., as there was no evidence to support Dr. S.’s comments.  
Based on a review of all of the evidence of record, the Board finds Entitlement to compensation pursuant to 38 U.S.C. § 1151, for an additional left leg neurological disability, genitourinary disability, and heart disability as a result of VA treatment is not warranted.  In so finding, the Board has carefully considered the medical opinions of record that supported the Veteran’s claim.
In the May 2006 private EMG report from M. M. J., M.D., the physician indicated that it was certainly possible that the patient had problems from spinal cord involvement affecting the peroneal nerves bilaterally.  Also, in a May 2007 letter from a private cardiologist, H. P., M.D., stated his understanding that the Veteran, due to severe low back syndrome, has been persistently sedentary with minimal physical activity and exercise, which could be a risk factor contributing significantly to the progression of his known coronary artery disease.  However, the Court has held that the use of equivocal language such as “possible” makes a statement by an examiner speculative in nature.  Bostain v. West, 11 Vet. App. 124 (1998); Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (may or may not language by a physician is too speculative).  As the May 2006 report from Dr. J. and May 2007 letter from Dr. P. each express an opinion in terms of speculative language using phrases such as “certainly possible” and “could be” the Board finds those opinions speculative in nature.  As they are speculative, they have been assigned less probative weight. 
The Board has also carefully considered the September 2006 VA spine examination report in which a VA neurosurgeon opined that it was more than 50 percent likely that the Veteran’s 2002 discogram caused a worsening of neurological problems and that the resultant delay in surgery of six to seven months caused him to have a permanent neurological problem, mainly a neurogenic bladder and chronic back pains.  However, that same neurosurgeon reconsidered and explained that the findings described in the 2002 discogram were a small paramedian disc that was not an emergent case.  Further, in a February 2009 VA medical opinion, the VA neurosurgeon noted a belief that the discogram did not cause the Veteran’s disability.  As the September 2006 VA neurosurgeon later changed the opinion after further reflection and evidence study, the September 2006 positive opinion has been assigned less probative weight.
In December 2004, A. S., M.D., concluded that the Veteran had a clear-cut picture of cauda equine syndrome with leg pain, leg numbness, and bladder problems.  The physician opined that the Veteran’s condition was one of the few absolute indications for disc surgery.  It was the physician’s professional opinion that VA neurosurgeons fell below the standard of care by ignoring those symptoms and delaying the surgery.  The physician concluded that the delay in surgery meant that the Veteran had a very small chance of relief of bladder symptoms, and the result was that he was left with permanent problems in emptying his bladder.  In September 2008, Dr. S. reiterated that the delay in surgery was not justified as bladder problems were one of the few indications for emergency back surgery.  Although the opinions by Dr. S. support the Veteran’s claim, the Board finds that they are outweighed by the November 2017 expert medical opinion by the VA Chief of Neurology.  In the November 2017 opinion report, the VA Chief of Neurology identified the specific pieces of evidence which supported the opinion, and he directly commented on why he disagreed with the opinions given by Dr. S.
Ultimately, the Board assigns the most probative weight to the competent, probative, and comprehensive findings of the December 2014 and August 2015 VA examiners, November 2017 VA cardiologist, and November 2017 VA Chief of Neurology.  Those opinions were made following a thorough review of the claims file and medical history.  Each examiner provided extensive reasoning to support their given opinion.  Each examiner cited specifically from the medical evidence of record.  Both positive and negative evidence of record was discussed.  Notably, conclusions were that there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA in furnishing hospital care and medical treatment to the Veteran. 
The Board acknowledges that the Veteran is competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  However, to the extent that the Veteran attributes his neurological, genitourinary, and heart symptoms to the administration of a scan by VA medical staff followed by surgery, such a determination involves complex medical findings beyond the Veteran’s lay competence.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board finds that the statements in that regard are of less probative value than the findings of the December 2014 and August 2015 VA examiners, November 2017 VA cardiologist, and November 2017 VA Chief of Neurology.
In conclusion, the Board finds that the preponderance of the evidence weighs against the claim of entitlement to compensation under 38 U.S.C. § 1151 for a left leg neurological disability, genitourinary disability, and heart disability.  The competent and probative evidence of record does not support a finding that any additional disability was proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable.  Accordingly, the criteria for VA compensation benefits under 38 U.S.C. § 1151 are not met, and the claims must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
 
 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Layton, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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