Citation Nr: 0006526 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-13 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for numbness as the result of hospitalization, medical treatment, or surgical treatment provided by the Department of Veterans Affairs (VA) on June 2 and June 3, 1997. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from February 1970 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 1998 by the VA Regional Office (RO) in Manchester, New Hampshire, which denied the claim for the issue on appeal. On appeal, in the VA Form 9 submitted in August 1998, the veteran appeared to be raising a new issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an eye disability or loss of visual acuity as the result of VA surgery on June 2 and June 3, 1997. This issue, however, has not been adjudicated, developed or certified for appellate review. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554 (1993). Accordingly, this issue is referred to the RO for appropriate consideration. FINDING OF FACT There is no competent medical evidence of record that the veteran suffered additional disability of numbness, or that any additional disability of numbness was caused by VA hospitalization, medical treatment, or surgical treatment on June 2 or June 3, 1997. CONCLUSION OF LAW The veteran's claim for compensation under 38 U.S.C.A. § 1151, for numbness as the result of hospitalization, medical treatment, or surgical treatment provided by VA on June 2 and June 3, 1997, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Effective October 1, 1997, 38 U.S.C.A. § 1151 provides as follows: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable . . . A person who submits a claim for VA benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [38 U.S.C.A. § 5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The requirements for a well-grounded claim under 38 U.S.C. § 1151 are, paralleling those generally set forth for establishing other service connection claims, as follows: (1) medical evidence of a current disability, or death; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability or death. Jones v. West, 12 Vet. App. 460 (1999). Through his representative, the veteran contends that, as a result of VA surgery on June 2 and June 3, 1997, he "has complete numbness from his nipples down through his body to his feet." In this case, the evidence demonstrates that the veteran was hospitalized at a VA medical center from May 19, 1997 to July 1, 1997 for necrotizing pancreatitis. On May 19, 1997 the veteran complained of, among other things, diffuse abdominal pain and a "hot" and "numb" sensation from his back to abdomen to lower extremities to toes. At the initial assessment on May 23, 1997, the veteran reported numbness and tingling involving both lower extremities, which had been intermittent for the previous 4 to 5 months and constant for the previous 10 days. He was vague with respect to the localization, though it seemed to involve some areas of the trunk, neck, and abdomen. He also reported that he felt very tired and had pain everywhere. The examiner indicated that the veteran was a poor historian and was unable to give precise symptoms. Deep tendon reflexes were 1+ in the knees, 2+ in the triceps, absent in the ankles, and others could not be tested due to reported pain. The veteran reported pain to touch everywhere on sensory examination, and no sensory level was found. The assessment was that no neurologic abnormality was found, and that the veteran's numbness was probably part of the multiple somatization symptoms he had. A progress note reflects that later in the same day the veteran again complained of numbness. At a neurologic consultation in May 23, 1997, the veteran reported that he had complained of intermittent numbness/tingling since January 1997, and that, approximately 6 days prior to admission on May 19, 1997, the numbness/tingling became constant and worsened, including that his toes felt like they were frost-bitten. Reflexes were 2+ biceps and triceps, 1+ patellar, and 0 Achilles bilaterally. No clear sensory level was determined, but a patchy sensory with even hypersensitivity to stimuli was noted, especially touching the toes, and there was no decreased sensation of the buttocks or back found. The examiner indicated that the veteran's complaints of numbness were most likely a psychiatric overlay. On May 25, 1997, the veteran complained of a tingly feeling in the fingertips, and leg weakness. On May 26, 1997, lower extremity numbness was reported, and the following day the veteran reported extreme lower extremity pain and burning, described as neuropathic pain, with no reproducible findings on examination. On June 1, 1997, the veteran consented to an exploratory laparotomy, with feeding J-tube, drainage of pancreatic abscess, and debridement and possible splenectomy, with possible multiple trips to the operating room. The risks explained to the veteran included bleeding, infection, damage to surrounding tissues, and death. On the morning of June 2, 1997, the veteran underwent a splenectomy and pancreatic debridement at a VA medical center. The postoperative diagnosis was phlegmon of the pancreas. On June 3, 1997, the veteran underwent an exploratory laparotomy (abdominal reexploration with J-tube placement) and pancreatic debridement, with a postoperative diagnosis of pancreatic phlegmon, without complication. Postoperatively, the veteran was noted to have improved overall, with no new complaints. A June 26, 1997 entry reflects a diagnosis of peripheral neuropathy. In the months that followed, the clinical findings included absent lower extremity reflexes, and 2+ upper extremity reflexes. In September 1997, an examiner indicated that there may be malingering involved with the veteran's claim of inability to lift his leg during physical examination to check reflexes. Neurology consultation in October 1997 revealed intact motor and sensory capabilities. In September 1997, the veteran complained of numbness of the toes and fingertips. Psychiatric examination in September 1997 resulted in discharge Axis I diagnoses which included somatoform disorder and rule out malingering, and obsessive- compulsive disorder, as well as histrionic elements as part of an Axis II personality disorder. In December 1997, the veteran complained of numbness from the nipples down since surgery in June 1997. Neurological examination revealed grossly intact motor and sensory. The evidence of record shows that, prior to or at the time of VA surgery on June 2, 1997, the veteran had numbness. This is demonstrated by a 4 to 5 month history of intermittent numbness and tingling from his back to abdomen and both lower extremities to toes (which felt "frostbitten"), with constant numbness 10 days prior to VA hospitalization in May 1997, which also involved some areas of the trunk, neck, and abdomen. Prior to VA surgeries on June 2 and June 3, 1997, the veteran also had deep tendon reflexes as follows: 1+ in the knees; 2+ in the biceps and triceps; and 0 in the ankles/Achilles. In the months after the June 2 and June 3, 1997 surgeries by VA, the veteran complained of numbness from the nipples down and was found to have intact motor and sensory capabilities. This evidence fails to establish increased post-treatment disability of numbness. Even the veteran's complaints pertain to essentially the same symptomatology he reported prior to VA surgeries in June 1997. As there is no evidence of additional disability of numbness, the Board must find that the veteran's claim for compensation for numbness under the provisions of 38 U.S.C.A. § 1151 is not well grounded. Even assuming, arguendo, that the veteran's post-surgical complaints reflect an increase in preexisting symptomatology of numbness, there is still no competent medical evidence of record that any additional disability of numbness was the result of VA hospitalization or medical or surgical treatment. The VA medical opinions of record reflect that the veteran's reported symptomatology was attributable to multiple somatization symptoms or a psychiatric overlay (May 23, 1997), malingering (June 26, 1997), or somatoform disorder, malingering, or histrionic elements part of a personality disorder (September 1997). Even assuming the credibility of the veteran's lay statements (for purposes of determining whether the claim is well grounded), his statements do not constitute competent evidence of medical causation. That is to say, the veteran is not qualified to offer a medical opinion on the medical question of whether VA medical or surgical treatment, or hospitalization, caused additional numbness. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Lathan v. Brown, 7 Vet. App. 359, 365 (1995). As there is no competent medical evidence of record that the veteran suffered additional disability of numbness following VA surgeries on June 2 or June 3, 1997, or that any additional disability of numbness was caused by VA hospitalization, medical treatment, or surgical treatment on June 2 or June 3, 1997, the Board does not reach the further question of whether any claimed additional disability of numbness was proximately caused by 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, and the Board need not determine whether additional disability of numbness was reasonably foreseeable. 38 U.S.C.A. § 1151. The Board notes, however, that there is no competent medical opinion of record to establish that any claimed additional numbness was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA providers. The Board is aware of no circumstances in these matters which would put VA on notice that relevant evidence may exist or could be obtained which, if true, would render the veteran's claims "plausible." See generally McKnight v. Gober, 131 F.3d 1483, 1484-5 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for the issue on appeal. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER The veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for numbness as the result of hospitalization, medical treatment, or surgical treatment provided by VA on June 2 and June 3, 1997, being not well grounded, is denied. BRUCE KANNEE Member, Board of Veterans' Appeals