Citation Nr: 0007488 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 97-31 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to benefits under 38 U.S.C.A. § 1151 for residual foot drop with right leg radiculopathy, claimed as resulting from Department of Veterans Affairs (VA) treatment. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran had service from July 1962 to October 1963. This matter is before the Board of Veterans' Appeals (Board) from a March 1997 rating decision of the Detroit, Michigan, VA Regional Office (RO). The RO denied the claim for compensation benefits under 38 U.S.C.A. § 1151 for residual foot drop with right leg radiculopathy. This case was before the Board in August 1998, at which time it was remanded for additional development. The RO completed such development to the extent possible, and the case is again before the Board for final appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The RO obtained all evidence necessary for an equitable disposition in this case. 2. The competent and probative evidence of record shows that residual foot drop with right leg radiculopathy were not caused or worsened by VA treatment. CONCLUSION OF LAW Residual foot drop with right leg radiculopathy was not incurred as a result of VA treatment. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.358 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background In a claim filed in September 1993, the veteran claimed that surgery performed at the Milwaukee VA Medical Center in 1990 resulted in damage to his right leg that could not be corrected. The veteran was hospitalized at a VA facility in August 1987 for acute low lumbosacral sprain. Physical examination demonstrated no sciatic pain. Ankle jerk and knee jerk on the right side were absent since a prior laminectomy. The pertinent diagnoses were acute low back sprain and status post lumbar laminectomy. The pertinent diagnosis following VA hospitalization in March to April 1988 was status post L-5 laminectomy, 1977, secondary to fractured vertebra with residual right lower extremity numbness and muscle spasm. VA outpatient treatment records dated in September 1990 show that the veteran was treated for complaints of pain going into his right lower extremity with weakness of the right ankle, especially with dorsiflexion and peroneus muscles. His history went back to 1976-1977, at which time he had a similar problem and had surgery; at that time, further testing reportedly revealed marked weakness below the waistline that gradually came back after surgery and he recovered his power. The current complaint involved difficulty walking and other activities. Physical examination demonstrated foot drop on the right side, especially the peroneal and the extensor digitorum muscle. He had a diminished sensation along the outer side of the leg, which he had since the previous surgery. The veteran was to have 2 weeks of physical therapy, after which surgery would be considered, depending on the degree of any improvement. The veteran was hospitalized at a VA facility from October 16, 1990, to October 21, 1990, with a 3-week history of progressive right leg and back pain. The veteran was noted with a right foot drop which had apparently been progressively present for the preceding 2 weeks. Physical examination revealed decreased dorsiflexion on the right at 3/5, with complaint of pain down the right leg to the ankle. There was decreased pinprick over the toes and dorsum of the foot on the right side. Laboratory testing showed a herniated disc on the right side at L4-5 as well as recurrent bulging and herniation at L5-S1. The diagnoses were herniated disc, L4-5 and L5-S1 and acute L5 radiculopathy on the right. VA treatment notes dated October 25, 1990, indicate that the veteran was seen on a daily outpatient treatment basis for right sciatica symptoms. While the veteran tolerated treatment well, he continued to have pain and weakness in the right lower extremity. The veteran was to go for further medical evaluation, and no further physical therapy was planned. The record reflects that the veteran underwent VA hospitalization from October 28, 1990, to November 6, 1990, for an L4-L5 laminectomy and diskectomy. The hospital records show he had been admitted earlier that month for a work-up of an L5 radiculopathy and foot drop. A myelogram and computerized axial tomography (CAT) showed a right L4-L5 herniated disc as well as central canal stenosis. Prior to surgery, a bone scan report listed the medical history as right L5 radiculopathy. Preoperative notes indicate that the veteran recently was evaluated for right lumbar radiculopathy and foot drop. An operative report of October 30, 1990, shows the veteran had a right-sided foot drop and radiculopathy that had been present during the preceding 3 weeks. The surgery, L4-5 laminectomy, was performed on October 30, 1990. The hospital summary notes that the veteran's post-operative course was uneventful and he was ambulating with less pain prior to discharge. The veteran's right foot function was improved. The summary indicates the veteran had a slight return of the "left" foot drop as well as "left" leg pain and numbness. VA neurosurgical outpatient treatment records dated in November 1990 indicate that the right foot drop continued with no significant change. VA outpatient treatment records dated in December 1990 indicate that the veteran was status post lumbosacral laminectomy with residual weakness of the right lower extremity. In January 1991, a VA orthopedic surgeon noted that the veteran had surgery on his back and subsequently he had a foot drop deformity where his extensor digitorum and peroneals were not working. The only working muscle was the tibialis anterior. Consequently, the veteran got the foot in an inversion type of position. Foot drop arthrosis was recommended. In March 1991, the veteran complained of an inability to dorsiflex the ankle. It was noted that he had surgery on his back twice and it had been post surgery that he was not able to dorsiflex the ankle. A right foot brace was to be provided as of April 1991, 5 months status post lumbar laminectomy. The veteran was hospitalized at a VA facility in October to November 1992 for recurrent angina pectoris. Physical examination demonstrated evidence of a right foot drop. The pertinent diagnosis was status post lumbar 4-5 laminectomy and right peroneal nerve palsy. This diagnosis was reiterated following VA hospitalization of August and September 1993. VA outpatient treatment records dated in February 1993 show an assessment of foot drop probably due to surgery; deficit is permanent. By history, it was noted that the foot drop developed after the 1990 surgery. The veteran was hospitalized at a VA facility for 2 days in November and December (the year was not annotated) for a lumbar myelogram. On admission it was noted that the veteran was 49 years of age (the veteran's year of birth was 1944) with status post L4-5 and L5-S1 diskectomies on the right with chronic L5 radiculopathy radiating into the top of the right foot. The diagnosis was chronic L5 radiculopathy. VA podiatry outpatient treatment records dated in February 1995 show that the veteran was to be treated for hammertoes of the right foot. The veteran reported that he had back surgery in 1990, following which he developed a dropfoot on the right. The hammertoes developed after the dropfoot. VA outpatient treatment records dated in January 1996 show that the veteran was treated for complaints of chest tightness. A history of a back operation, right foot drop, in 1990 was noted. The veteran underwent a VA examination in December 1996. The examiner noted that the VA medical records from 1990 were not available for review at that time. The veteran reported a history of work-related back injuries in 1978 and in 1990. He also reported a history of having undergone a laminectomy and diskectomy at a private hospital approximately in 1978, three months after his initial work-related injury, and he reported the VA surgery in 1990. The veteran stated he had a loss of feeling in the right leg and foot, with a floppy right foot soon after the 1990 VA surgery and that that he now had permanent loss of sensation at the right lateral lower leg, the top of the right foot and the last three toes of the right foot. Based on the history from the veteran, the examiner's diagnoses included post-operative complication of partial right foot drop due to L5-S1 radiculopathy in 1990. VA outpatient treatment records dated in January 1998 show that the veteran had a partial right foot drop. The February 1998 request for a brace shows that the disability for which the appliance was required was dropfoot on the right secondary to back surgery in 1990. An orthopedic consult in May 1998 indicated that the veteran exhibited right dropfoot and no muscle strength was noted with eversion. The veteran related that in 1990 he had several back surgeries and as a result he suffered some kind of trauma to the peroneal nerve and the resultant foot drop on the right. The veteran stated that he had not been the same since before the surgery. In June 1998, the examiner noted that the veteran had a right foot drop for about 8 years since his second back surgery. The assessment was chronic right foot drop status post back surgery. In December 1998, the veteran's claims file was reviewed by a medical specialist. The doctor noted the presence of a right foot drop prior to the veteran's surgery on October 30, 1990. He noted that following the surgery, other reports contained a somewhat contradictory history. He notes by example that a December 1996 examination indicated that after the 1990 operation there was a loss of feeling in the right foot. The doctor's opinion was that although the veteran had disc surgery in 1977-1978, his presentation to the medical center in 1990 was with leg and back complaints including a foot drop. That situation was present before the surgery in October 1990. As such, it was his opinion that the veteran did not suffer injury resulting in a foot drop as a result of the operation. Further, no records were found that the treatment by VA aggravated the previously treated back condition. Another VA doctor provided an opinion in February 1999. The doctor noted that the claims folder had been reviewed. It was this doctor's opinion that the veteran had right foot drop before his surgery in October 1990 and that the surgery did not aggravate his foot drop. Pertinent Laws and Regulations 38 U.S.C.A. § 1151 provides that, when a veteran suffers injury or aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the veteran's own willful misconduct or failure to follow instructions, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service- connected. The regulations implementing that statute appear at 38 C.F.R. §§ 3.358, 3.800. In Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d. 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, ___ U.S. ___, 115 S. Ct. 552 (1994), the United States Court of Appeals for Veterans Claims (Court) invalidated the provisions of 38 C.F.R. § 3.358(c)(3). The Court held that 38 C.F.R. § 3.358(c)(3) was inconsistent with the plain meaning of 38 U.S.C.A. § 1151 [formerly § 351], and that the regulation exceeded the VA's authority. Pursuant to the Court's holding in Gardner, the VA instituted a Department-wide policy of holding in abeyance certain cases, such as this one, which were likely to fall within the precedent of Gardner. Meanwhile, the VA appealed the Court's holding to the United States Court of Appeals for the Federal Circuit, Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993). Subsequently, the Gardner decision was affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and was subsequently appealed to the United States Supreme Court. The Board notes that in 1994 the Supreme Court decision found that the regulation at 38 C.F.R. § 3.358(c)(3) exceeded statutory authority by requiring fault on the part of the VA in order for an appellant to prevail on a claim for benefits under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd. sub nom, Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd., 115 S. Ct. 552 (1994). On January 26, 1995, the Chairman of the Board announced the lifting of the Board's stay on the adjudication of cases affected by Gardner involving claims for benefits under 38 U.S.C.A. § 1151. The cited regulation was amended to remove the "fault" requirement, with the final rule effective July 22, 1996. The regulation at that time provided, in pertinent part, that, in determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based is compared with the physical condition subsequent thereto. 38 C.F.R. § 3.358(b)(1). Compensation is not payable if additional disability or death is a result of the natural progress of the injury or disease for which the veteran was hospitalized. 38 C.F.R. § 3.358(b)(2). Further, the additional disability or death must actually result from VA hospitalization or medical or surgical treatment and not be merely coincidental therewith. 38 C.F.R. § 3.358(c)(1), (2). In addition, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain or intended to result from the VA hospitalization or medical or surgical treatment. 38 C.F.R. § 3.358(c)(3). Subsequently, the United States Congress again amended the regulation for the effective purpose of overruling the Supreme Court's decision in the Gardner case and re- instituted a negligence requirement in 38 U.S.C.A. § 1151 claims. The new amendment is effective with respect to claims filed on or after October 1, 1997. However, this amendment does not apply to the veteran's claim which precedes the effective date of the change. Analysis A well-grounded 1151 claim requires medical evidence of a current disability; medical or lay evidence of incurrence or aggravation of an injury as the result of hospitalization, etc., and medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v. West, 13 Vet. App. 129 (1999). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the record contains a diagnosis of post- operative complication of partial right foot drop due to L5- S1 radiculopathy, which has been related by a competent medical professionals (VA examination in 1996 and in various post surgery treatment records) to 1990 treatment at a VA facility. Accordingly, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. The veteran has not indicated the existence of any other relevant evidence. The RO sought to obtain all VA treatment records, both before and after the October 1990 surgery, and medical opinions from two different doctors were obtained. All actions requested in the Board's remand have been accomplished, to the extent possible, see Stegall v. West, 11 Vet. App. 268 (1998), and, the Board finds all relevant evidence necessary for an equitable disposition of the appeal has been obtained, and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Once a claim is found to be well grounded, the presumptions of credibility and entitlement of the evidence to full weight no longer apply. In the adjudication that follows, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The veteran argues that VA surgery in October 1990 caused additional disability of the right leg, characterized as right foot drop and radiculopathy. Since the veteran's claim on that basis was filed before October 1997, such must be adjudicated in accord with the earlier version of 38 U.S.C.A. § 1151 and the 1996 final regulation. Thus, neither evidence of an unforeseen event nor evidence of VA negligence is required here. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Initially, the Board finds that the medical opinions dated in December 1998 and February 1999 are of high probative value. The Court has held that greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence, Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994), and an opinion may be discounted if it materially relies on a layperson's unsupported history as the premise for the opinion. Wood v. Derwinski, 1 Vet. App. 190, 191-192 (1991). As to the December 1998 and February 1999 opinions, each doctor conducted a thorough review of the veteran's records and noted both pre-October 1990 symptoms and post-surgery symptoms from the associated records. The December 1998 doctor specifically considered the contradictions in the veteran's medical histories and contrasted that to the actual records that supported his conclusions. In light of this doctor's detailed discussion of the veteran's claim in conjunction with the record, this opinion is shown to have a full and sound basis for its conclusion. That conclusion was that the veteran did not suffer injury resulting in a foot drop as a result of the October 1990 operation and that the records did not demonstrate that the treatment at the VA medical center aggravated the previously treated back condition. Similarly, the February 1999 examiner came to the same conclusion after reviewing the case file. In sum, no additional disability is found. The Board finds that the opinions obtained by in December 1998 and February 1999 are of higher probative value than the opinions and notations offered in the December 1996 VA examination or in the VA treatment records, including those dated in December 1990, 1991, 1993, 1995 and 1998. With regard to the December 1996 examiner's opinion, it was clearly noted that this examiner did not have the VA medical records from 1990 available for review. The VA treatment records at certain times, as described above, in December 1990, 1991, 1993, 1995 and 1998 also link the veteran's current dropfoot to surgery in 1990, but significantly, they also note that the veteran reported such problem from that time. For example, in February 1993, it was noted that it was by history that the foot drop developed after the 1990 surgery. Similarly, the February 1995 examiner stated it was by the veteran's report that following the back surgery in 1990 a dropfoot developed. However, a longitudinal review of the record reveals that right foot drop was present before the October 1990 surgery. This clinical finding was documented in VA records in September and October 1990, prior to the veteran's surgery. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, or based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). In this case, the medical opinions from the December 1996 VA examination and those found in the aforementioned treatment records are diminished and of low probative value since they are based on an inaccurate factual basis that is not supported in the record. In February 2000 written arguments, the veteran's representative maintained that the benefits should be granted since the December 1998 doctor admitted to the conflicting medical history. Nevertheless, the Board does not agree that this provides a basis for a grant of benefits. Rather, this doctor's opinion is considered stronger because of the reconciliation provided by its discussion of the contradiction in the medical histories in various records. As described above, this medical opinion in December 1998 is of higher probative value because it relied on a review of the medical data both before and after the October 1990 treatment, rather than a reported history. Id. It is noted by the Board that the veteran sincerely contends that his right lower extremity function worsened following the October 1990 surgery. Although the veteran is competent to testify as to his observable experiences and symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnoses or causation competent. In this case, the competent and probative evidence of record shows that the veteran's residual foot drop with right leg radiculopathy did not result from VA treatment, nor did any additional disability. Accordingly, the veteran's claim for benefits under 38 U.S.C.A. § 1151 is denied. As there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's 38 U.S.C.A. § 1151 claim, application of the benefit of the doubt is not in order. 38 U.S.C.A. § 5107(b). Rather, the evidence in this case preponderates against the claim and such is denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Benefits under 38 U.S.C.A. § 1151 for residual foot drop with right leg radiculopathy, claimed as resulting from VA treatment, are denied. M. Sabulsky Member, Board of Veterans' Appeals