Citation Nr: 0001974
Decision Date: 01/27/00	Archive Date: 03/02/00

DOCKET NO. 96-09 386               DATE JAN 27, 2000

On appeal from the Department of Veterans Affairs (VA) Regional
Office (RO) in White River Junction, Vermont

THE ISSUE

Entitlement to compensation benefits pursuant to the provisions of
38 U.S.C.A. 1151 (West 1991) for a back disability as a result of
VA medical treatment in December 1993.

REPRESENTATION 

Appellant represented by: Veterans of Foreign Wars of the United
States 

WITNESSES AT HEARING ON APPEAL 

Appellant and his wife

ATTORNEY FOR THE BOARD

J. Horrigan, Counsel

INTRODUCTION

The veteran had active service from February 1943 to November 1945.

This case comes to the Board of Veterans' Appeals (Board) on appeal
from a September 1994 administrative determination in which the RO
denied the veteran recognition as a former POW for VA purposes, and
from an August 1995 rating action in which the RO denied
compensation benefits pursuant to the provisions of 38 U.S.C.A.
1151 for an increase in back disability as a result of VA medical
treatment in December 1993. In February 1996 the veteran appeared
and gave testimony at a hearing before a hearing officer at the RO.
A transcript of this hearing is of record.

In an October 1997 decision, the Board denied the veteran
recognition as a former POW for VA purposes. The Board remanded the
issue of entitlement to compensation benefits pursuant to 38
U.S.C.A. 1151 to the RO for evidentiary development. In May 1999,
the Board again remanded this issue to the RO.

The issue of entitlement to compensation benefits pursuant to 38
U.S.C.A. 1151 for a back disability as a result of VA medical
treatment in December 1993 is now before the Board for further
appellate consideration.

FINDINGS OF FACT

1. The veteran had degenerative joint disease of the lumbar spine,
and postoperative lumbar intervertebral disc syndrome for many
years prior to

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December 1993; he also had prostate cancer with metastases to the
entire spine prior to December 1993.

2. The veteran was administered a spinal anesthetic at L3-4 prior
to a bilateral orchiectomy performed by the VA during a
hospitalization in December 1993.

3. The spinal anesthetic administered by the VA in December 1993
caused an exacerbation of the veteran's low back pain.

4. The spinal anesthetic administered prior to his VA performed
orchiectomy of December 1993 did not result in an increase in
severity of the veteran's pre- existing low back pathology.

5. The spinal anesthetic administered by the VA in December 1993
did not cause additional low back pathology.

CONCLUSION OF LAW

The requirements for entitlement to compensation benefits pursuant
to the provisions of 38 U.S.C.A. 1151 for a back disability as a
result of VA medical treatment in December 1993 have not been met.
38 U.S.C.A. 1151, 5107 (West 1991 & Supp. 1999); 38 C.F.R. 3.358
(1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Factual Background

Initially, the Board notes that it finds the veteran's claim for
compensation benefits pursuant to 38 U.S.C.A. 1151 for a back
disability as a result of VA medical treatment in December 1993 to
be well grounded within the meaning of 38 U.S.C.A. 5107, in that
the claim is plausible. The Board also finds that all

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relevant facts pertinent to the claim have been developed to the
extent possible, and no further assistance to the veteran is
required in order to satisfy the VA's duty to assist him in the
development of this claim as mandated by 38 U.S.C.A. 5107(a).

Review of the record reveals hospitalization at a VA medical
facility in October and November 1963 with a long history of low
back discomfort. A diagnosis of degenerative joint disease of the
lumbar spine was reported. In June and July 1965 the veteran was
again hospitalized by the VA for low back symptoms. During this
hospitalization the veteran underwent a lumbar myelogram and
excision of a herniated disc at L4-5 on the right. His post-
operative course was uneventful and he experienced relief of his
back symptoms. After his discharge from the hospital in early July
1965, the veteran was provided a home physical therapy program
consisting of heat and back strengthening exercises.

During VA outpatient treatment in November 1993, a history of
prostate cancer that was initially diagnosed in 1987 was reported.
A bone scan conducted in November 1993 showed multiple foci of
radiotracer uptake throughout the skeleton, including the cervical,
thoracic,, and lumbar spinal segments and the left iliac wing. The
impression was diffuse bony metastases. Consequently, the veteran
was hospitalized at a VA facility in December 1993 and underwent a
bilateral orchiectomy. Prior to the surgery the veteran was
administered a spinal anesthetic to the L3-L4 interspace without
difficulty. On the day following the bilateral orchiectomy the
veteran was noted to complain that his back was bothering him. He
was discharged from the hospital later that day with a final
diagnosis of prostate cancer with bilateral orchiectomy.

During VA outpatient treatment in late January 1994 it was noted
that the veteran was status post bilateral orchiectomy on December
27, 1993. It was said that he was doing well after two days of
"spinal headache". During treatment in April 1994 for a disorder
not now at issue, it was reported that the veteran had pain in the
back and leg as a possible result of surgery. A bone scan performed
that month showed abnormal increased uptake in the cervical spine
and in the L5 - S1 area which likely represented degenerative
changes. An April 1994 X-ray showed

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virtual obliteration of the L5-S1 disc space, a grade 1
spondylolisthesis L4 on L5 with sclerotic changes in the facet
joints, multiple small sclerotic foci in the sacroiliac joints and
multiple lumbar vertebrae consistent with blastic process
(metastatic). A June 1994 lumbar myelogram showed a moderate to
severe circumferential extradural defect at L4-5 and a mild
circumferential defect at L3-4. After a June 1994 CT scan the
impressions were mild constriction of the thecal sac at L2-3;
paracentral disc bulging at L3-4 with mild stenosis; paracentral
disc bulging at L4-5 with vacuum phenomena and marked facet
overgrowth and moderate to severe spinal stenosis; paracentral disc
bulging and moderate to severe spinal stenosis at L5 - S1; and
suspected metastatic disease of the lumbar spine and pelvis. After
a bone scan in July 1994, the impression was that the foci of
increased activity in the lumbar spine quite likely represented
degenerative changes with no metastatic disease to the sacroiliac
joints.

In mid July 1994, the Chief of the Anesthesia service at a VA
medical facility considered the question of the veteran's pain at
the site of the administration of spinal anesthesia in December
1993. The doctor had reviewed the veteran's chart but was unable to
locate the anesthesia record. He noted a transient headache and
back pain beginning as the spinal anesthetic dissipated and
commented that back pain sometimes followed lumbar puncture and was
usually transient as well. The doctor opined that the veteran had
adequate reason for back pain in the absence of other factors, such
as a lumbar puncture.

During VA outpatient treatment in late July 1994, the veteran was
noted to complain of low back pain that he believed was secondary
to the administration of spinal anesthesia in December 1993. It was
also noted that he had been told that the back pain was secondary
to lumbar spine disc pathology. After orthopedic evaluation the
assessment was spinal stenosis at L4-5. After further outpatient
treatment in August 1994, the assessment was back pain since spinal
anesthesia in December 1993 with radiographic studies showing
spinal stenosis as well as metastatic disease. Following outpatient
treatment in September 1994 the assessment was chronic pain likely
secondary to spinal stenosis.

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On a VA orthopedic examination in November 1994, the examiner
stated that the veteran's records had not been located. After
evaluation, the diagnosis was chronic low back pain secondary to
degenerative changes in the lower lumbar spine secondary to
herniation of the intervertebral disc at the lumbosacral level
approximately 30 years ago. The examiner commented that, in view of
a negative neurological evaluation, negative straight leg raising
and range of motion in the lumbar spine compatible with the
veteran's age and history of a disc excision 30 years ago, it
seemed that the evidence did not suggest herniation of a
intervertebral disc to be the likely cause of the veteran's
discomfort.

Magnetic resonance imaging of the lumbar spine at a VA facility in
June 1995 revealed a moderate herniated nucleus pulposus at L4-5
with severe ligamentous and facet hypertrophy, resulting in severe
narrowing of the central canal and both lateral recesses; there was
no evidence of discitis. During the period from June through August
1995, the veteran was treated as an outpatient for back pain with
injections of nerve block medication to the lumbar spine.

During a VA hospitalization in November and December 1995 for
spinal stenosis at L4-5, the veteran underwent decompression
laminectomy of L4-5, bilateral medial fasciectomies of L4 and L5,
and bilateral foraminotomies of L4 and L5 with in situ bilateral
lateral transverse process fusion of L4-5 with a right posterior
iliac crest bone graft. During VA outpatient treatment in January
1996, it was reported that the veteran had no leg pain or numbness.

During an RO hearing in February 1996, the veteran said that he had
been very active and had had no back pain prior to December 1993.
At that time he was given a spinal anesthetic prior to surgery and,
when the anesthetic wore off, he developed numbness in the feet,
severe aching in the back of the legs, and pain in the mid back
with a jump at the site of the spinal. He said that his back pain
had persisted since that time. The veteran also said that his VA
physician had told him that the back pain was related to the spinal
anesthetic administered in December 1993.

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When seen by the VA as an outpatient in February and March 1996,
the veteran complained of back pain and right foot numbness. A
myelogram of April 1996 revealed new metastatic lesions at L3 and
L4, as well as lesions at L5-S1. The assessments included
persistent back pain with new elevated PSA and new lesions at L3-4
suggestive of increased metastatic disease. Subsequent outpatient
treatment in 1996 for back pain is indicated.

During VA outpatient treatment in October 1997, it was noted that
the veteran had been referred for a consultation regarding
unremitting and somewhat progressive low back pain in a setting of
metastatic prostate carcinoma as well as multiple back surgeries.
He was evaluated for the potential benefits of radiotherapy to
alleviate low back pain and subsequently underwent a course of
radiotherapy without complication.

In a February 1998 statement, Joseph F. O'Donnell, M.D., the
veteran's treating physician at the VA, indicated that he had first
seen the veteran in September 1994. He said that the veteran had
consistently indicated that his back pain had worsened at the time
of the spinal anesthesia administered by the VA in December 1993.
Because of the veteran's consistent reports and the course of his
prostatic cancer, Dr. O'Donnell stated that the veteran's back pain
worsened at a point in time in which his cancer was actually
better. Dr. O'Donnell also said that he believed that the veteran's
back pain was related to the spinal. anesthesia.

After a February 1998 VA examination, the diagnosis was chronic
lumbosacral instability secondary to excision of a disc in 1965 and
attempted lower lumbar fusion in 1993, metastatic carcinoma of the
prostate, and vascular insufficiency of both lower extremities.
(The RO concluded that this examination was inadequate and
forwarded the claims folder back to the VA medical facility for a
further VA medical opinion.)

In a statement dated in March 1998, Franklin Lynch, Jr. M.D., a VA
physician, commented in great detail on the records in the
veteran's claims folder. He noted that it was unlikely that the
needle stick from the spinal anesthetic caused any

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problem or permanent injury to the nerve. The procedure was
necessitated by the carcinoma which responded to the orchiectomy by
giving him another couple of years of much lower progression and
now reactivated and was growing more rapidly. It is possible that
the positioning on the operating room table with total muscle
relaxation from the spinal anesthetic allowed some increased
swelling in the low back and some worsening of the spinal stenosis
that what already existing. This may have persisted and was
unresponsive to the veteran's decompression. The pain he was
suffering from was currently neurogenic and is well fixed related
to previous compression on nerves as best Dr. Lynch could tell. Dr.
Lynch did not think that there was a direct affect from a needle
stick onto a nerve because he could not get both sides and would
not do so equally. At present his weakness, fatigue, and limited
activity was more due to the burden of his chronic disease and some
depression, in Dr. Lynch's opinion.

Dr. Lynch further noted that the pain or back disability that the
veteran was currently having was not a predictable outcome of the
spinal anesthetic. It was not likely to happen and was not related
to the complication of the procedure. The veteran was noted to be
an older gentleman and had multiple disease processes and it was
possible that the positioning for the procedure with the brief
relaxation produced some edema, some swelling, and some further
nerve compression which has failed to resolve. It was also possible
that the ongoing prostatic carcinoma which was treated by the
orchiectomy had worsened and was causing irritation of the nerves.
There was no gross neurologic deficits and there was typically a
response to decompression if pain was solely related to the spinal
stenosis or swelling around the cord. There has been no improvement
in the two and a half years following that decompression. Dr. Lynch
said that he had reviewed the veteran's old records in regard to
that operation and thought that while it was possible for a
secondary affect of the spinal anesthetic to exacerbate back pain,
the veteran's present disability was most likely r elated to the
widespread prostatic carcinoma and old scarring and nerve injury
and is not directly related to the needle stick from the spinal
anesthetic.

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Of record is a August 1999 statement from John M. Gibbons, M.D.,
who stated, essentially, that he had been asked to review the
veteran's records and provide a medical opinion because of
uncertainty as to whether Doctor Lynch had had the entire pertinent
medical record at the time of his March 1998 statement. Doctor
Gibbons said that he had reviewed the veteran's entire medical
record and also commented that Doctor Lynch's March 1998 opinion
was also based on a review of the entire record at that time.
Doctor Gibbons noted that Dr. Lynch had concluded that although it
is possible for the veteran's back pain to be exacerbated by a
spinal anesthetic, that the most likely cause of his present
disability is widespread prostatic carcinoma. Dr. Gibbons further
said that he concurred with Dr. Lynch's March 1998 statement. He
added that a September 1998 MRI study confirmed the presence of
metastatic prostate carcinoma and that this supported Doctor
Lynch's opinion. The most likely cause of the veteran's back
disability was widespread prostate carcinoma.

In a September 1999 statement, Joseph F. O'Donnell, M.D., the
veteran's treating VA physician indicated that he had reviewed the
veteran's clinical records. Doctor O'Donnell reiterated his
previous opinion that something happened during the December 1993
VA hospitalization because the veteran had been consistent and
explicit that his back pain had gotten worse at that time. The
doctor said that he did not know the veteran at that time but the
veteran's story had not altered during the entire course of their
relationship. The doctor also noted that the record of the
veteran's December 1993 VA hospitalization did not note any
complaints of back or bone pain prior to the December 1993 spinal
anesthetic. Doctor O'Donnell said that he was- sticking with his
prior opinion that, according to the veteran's history, back pain
was not present prior to the December 1993 procedure but became
present thereafter. He said that, as explained by Doctors Lynch and
Gibbons, the back may not be due to the spinal anesthetic but was
certainly related temporally. While he did not have objective proof
that the veteran's back pain was due to the anesthesia, Doctor
O'Donnell said that the veteran's story was consistent and the back
pain had gotten worse at a time when his cancer was actually quite
a lot better.

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II. Legal Analysis.

In pertinent part, 38 U.S.C.A. 1151 provides that where any veteran
shall have suffered an injury, or an aggravation of an injury, as
a result of hospitalization, medical or surgical treatment, not the
result of the veteran's own willful misconduct, and such injury or
aggravation results in additional disability or death, compensation
shall be awarded in the same manner as if such disability or death
was service connected.

The regulation implementing that statute, 38 C.F.R. 3.358,
provides, in pertinent part, that in determining if additional
disability exists, the beneficiary's physical condition immediately
prior to the disease or injury on which the claim for compensation
is based will be compared with the subsequent physical condition
resulting from the disease or injury. As applied to medical or
surgical treatment, the physical condition prior to the disease or
injury will be the condition which the specific medical or surgical
treatment was designed to relieve. Compensation will not be payable
for the continuance or natural progress of disease or injuries for
which the hospitalization etc., was authorized. In determining
whether additional disability resulted from a disease or injury or
an aggravation of an existing disease or injury suffered as a
result of hospitalization, medical or surgical treatment, it will
be necessary to show that the additional disability is actually the
result of such disease or injury or an aggravation of an existing
disease or injury and not merely coincident therewith. 38 C.F.R.
3.358 (b), (c)(1).

The regulation further provides that compensation is not payable
for the necessary consequences of medical or surgical treatment or
examination 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 to result from, or intended to result from the examination
or medical or surgical treatment administered. 38 C.F.R. 3.358,(c)
(3).

The veteran has asserted that his current back pain is a result of
a spinal anesthetic administered at a VA medical facility prior to
an orchiectomy performed in

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December 1993. Review of the record reveals that the veteran had
degenerative joint disease of the lumbar spine, post operative
lumbar intervertebral disc syndrome, (following lumbar
intervertebral disc surgery in 1965) and prostatic cancer with
metastases to the entire spinal column and the sacrum prior to the
December 1993 surgical procedure involving the administration of a
spinal anesthetic. The veteran clearly did have complaints
referable to his low back shortly after the December 1993
orchiectomy, but only a spinal headache was reported about a month
following the surgical procedure. No @er reference to back pain was
noted in the clinical records until April 1994, almost four months
after his orchiectomy. The record contains two statements from the
veteran's treating VA physician in which he opined that there was
in fact a relationship between the VA administered spinal
anesthetic of December 1993 and the veteran.'s complaints of back
pain. These statements are entitled to all due evidentiary weight,
but the Board also notes that the record contains statements from
three other VA physicians who all opined, essentially, that the
veteran's current back pain was the result of factors such as
spinal stenosis,. degenerative disease of the spine, and carcinoma
which had spread to the spine. It was their opinion that the
veteran's current low back pain is unrelated to his December 1993
spinal anesthetic.

The adjudicative questions before the Board are whether the
administration of spinal anesthesia in December 1993 resulted in an
increase in severity of the then existing underlying low back
pathology or whether it caused additional low back pathology which
was not present prior to December 1993. The answer to both
questions is, in the opinion of the Board, in the negative. Dr.
Lynch and Dr. Gibbons as well as the VA anesthesiologist (July
1994) all concluded that any back pain associated with the
administration of spinal anesthetic in December 1993 was acute and
transitory and subsided without residual disability. It did not
cause low back pathology which was not already present and did not
aggravate the preexisting extensive low back pathology.
Additionally, in his most recent report in September 1999, Dr.
O'Donnell, the veteran's treating VA physician, appeared to concur
with Dr. Lynch and Dr. Gibbons. He stated that the veteran's back
pain may not be due to spinal anesthesia, but certainly in his
opinion it was "temporally" related. One definition of "temporally"
indicates that the low back pain due to the spinal

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anesthesia was a transient affair. Another definition would
indicate that the attribution of current low back pain to the
December 1993 spinal anesthetic was something that the veteran
believed to be the case.

In view of the above, and after a review of the applicable statute
and regulation, the Board concludes that the preponderance of the
evidence is against the claim. Since that is the case, compensation
benefits pursuant to the provisions of 38 U.S.C.A. 1151 for a back
disability as a result of VA medical treatment in December 1993 are
not warranted.

ORDER

Entitlement to compensation benefits pursuant to 38 U.S.C.A. 1151
for a back disability as a result of VA medical treatment in
December 1993 is denied.

BRUCE E. HYMAN
Member, Board of Veterans' Appeals

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