Citation Nr: 0006591 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-04 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for additional disability, to include osteomyelitis of T4 and T5 with spinal cord compression and paraplegia, as a result of VA treatment. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from July 1962 to July 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board remanded this case to the RO for further development in June 1999, and, following compliance with the Board's remand instructions, the RO has returned the case to the Board. FINDING OF FACT There is no competent medical evidence showing that the veteran incurred additional disability, to include osteomyelitis of T4 and T5 with spinal cord compression and paraplegia, as a result of VA treatment. CONCLUSION OF LAW The claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for additional disability, to include osteomyelitis of T4 and T5 with spinal cord compression and paraplegia, as a result of VA treatment is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. See 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999); 38 C.F.R. § 3.358 (1999). 38 U.S.C.A. § 1151 has recently been amended, and the amended statute indicates that a showing of negligence or fault is necessary for recovery for claims filed on or after October 1, 1997. However, for claims filed prior to October 1, 1997, as here, a claimant is not required to show fault or negligence in medical treatment. See generally Brown v. Gardner, 513 U.S. 115 (1994); see also Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In determining that additional disability exists, the veteran's physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. See 38 C.F.R. § 3.358(b)(1) (1999). Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. See 38 C.F.R. § 3.358(b)(2) (1999). Several conditions govern the determination of whether any additional disability resulted from VA hospitalization or treatment. First, it is necessary for the veteran to show that additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury suffered as the result of hospitalization or medical treatment and not merely coincidental therewith. See 38 C.F.R. § 3.358(c)(1) (1999). The mere fact of aggravation alone will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, an examination, or medical or surgical treatment. See 38 C.F.R. § 3.358(c)(2) (1999). Second, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or treatment administered. See 38 C.F.R. § 3.358(c)(3) (1999). However, the initial question that must be answered in this case is whether the veteran has presented a well-grounded claim for compensation under the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). In this regard, the veteran has the burden of submitting evidence "sufficient to justify a belief by a fair and impartial individual" that the claim is well grounded; that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). For a claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) to be well grounded, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of an injury or disability as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation; and medical evidence of a nexus between the asserted injury or disease and the current disability. See generally Jones v. West, 12 Vet. App. 460 (1999); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the veteran has contended that the failure of VA medical providers to conduct either a magnetic resonance imaging study (MRI) or a bone scan at an earlier date would have prevented his osteomyelitis of T4 and T5, with spinal cord compression and paraplegia, from developing. This contention is reflected in the veteran's February 1998 Notice of Disagreement. The Board has reviewed the evidence of record and observes that the veteran was first treated at a VA facility for chest and back pain in March 1995. In June 1995, the veteran was transferred from a private facility to a VA medical center. An MRI revealed probable osteomyelitis of T4 and T5, associated with paraspinal abscess, canal involvement, and cord compression. A laminectomy of T4 and T5 was subsequently performed. The report of a VA hospitalization, lasting from June to November in 1995, contains diagnoses of osteomyelitis involving T4 and T5, with spinal cord compression; and secondary paraplegia. Subsequently, in August 1997, the veteran underwent VA spinal cord and peripheral nerves examinations. The report of the VA spinal cord examination, the first of the two to be conducted, contains an opinion that "if osteomyelitis was diagnosed earlier, it is possible that appropriate antibiotic treatment would have prevented formation of epidural abscess that eventually led to paraplegia in this man." However, this examiner did not specifically address whether VA treatment providers, as opposed to private treatment providers, had failed to diagnose this disability in a timely manner, and the examiner noted the veteran's "remarkable functional recovery" due to surgical intervention, subsequent antibiotic treatment, and intensive rehabilitation. The report of the VA peripheral nerves examination contains an opinion that "[f]rom the patient's point of view, he is right that there was a failure in proper diagnosis and proper treatment at an earlier date but from the physician's point of view, it was not easy to diagnose because there were not enough clinical signs and symptoms present and on the tests everything appeared to be normal." The pertinent diagnosis was mild paraparesis as a residual of osteomyelitis and an epidural abscess from a T4-T5 lesion, with decompression. The Board has reviewed the claims file and observes that the veteran's allegation that VA treatment providers failed to diagnose his osteomyelitis of T4 and T5 in a timely manner is not supported by the medical evidence of record. The examiner who conducted that the VA spinal cord examination suggested a failure to timely diagnose this disability but did not specifically attribute that failure to VA treatment providers. In addition, the examiner only indicated that it is possible that appropriate antibiotic treatment would have prevented formation of epidural abscess that eventually led to paraplegia. Use of the word possible renders the opinion too speculative to well-ground the claim. See Beausoleil v. Brown, 8 Vet. App. 459 (1996) (holding that a general and inconclusive statement about the possibility of a link was not sufficient to make a veteran's service connection claim well grounded); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). A medical opinion expressed in terms of "may," also implies "may or may not" and is too speculative to establish a plausible claim. See Obert v. Brown, 5 Vet. App. 30 (1993). Such a speculative statement does not justify a belief by a fair and impartial individual that the claim is well grounded. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service-connected disorder "may or may not" have prevented medical personnel from averting the veteran's death was not sufficient evidence to render a claim well grounded). Furthermore, he examiner who conducted the VA peripheral nerves examination, while acknowledging the veteran's contentions, found that the initial medical tests performed prior to the June 1995 surgery were sufficiently normal that an early diagnosis would be difficult. The Board finds that this statement is also too speculative to well ground the veteran's claim. Even assuming, without conceding, that VA treatment providers failed to diagnose this disability in a timely manner, the Board would point out that 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) concerns cases in which additional disability is the result of VA treatment or other care. However, it is not clear that the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) apply in cases in which a failure to diagnose is alleged result in additional disability. Regardless of how section 1151 is interpreted, there is simply no competent medical evidence of a nexus between the veteran's current disability and any incident of VA treatment. Indeed, the only evidence of record supporting a nexus between the veteran's current disability and VA treatment is his lay opinion, as described above. However, the Board would point out that the veteran has not been shown to possess the requisite medical expertise needed to render a competent opinion regarding medical causation. See Grottveit v. Brown, 5 Vet. App. at 93; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner and unenhanced by any additional medical commentary from that examiner does not constitute competent medical evidence); Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). A well-grounded claim must be supported by evidence, not merely allegations. In the present case, the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for additional disability, to include osteomyelitis of T4 and T5 with spinal cord compression and paraplegia, as a result of VA treatment is well grounded. Given the absence of competent medical evidence to support the veteran's claim, this claim must be denied as not well grounded. Since this claim is not well grounded, the VA has no further duty to assist the veteran in developing the record to support his claim. See Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). In the appealed rating decision, the RO denied the veteran's claim on its merits, while the Board has denied this claim as not well grounded. Nevertheless, regardless of the disposition of the RO, the Board observes that the United States Court of Appeals for Veterans Claims has held that no prejudice to the veteran results in cases where the RO denies a claim for service connection on its merits and does not include an analysis of whether the veteran's claim is well grounded, and the Board denies the same claim as not well grounded. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Furthermore, the Board is not aware of the existence of additional relevant evidence that could serve to make the veteran's claim well grounded. In this regard, the Board observes that, in June 1999, the RO sent a letter to the veteran requesting that he fill out release forms for two private facilities from which he had reportedly received treatment, but no response was received from the veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, there is no further duty on the part of the VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify the veteran of the evidence required to complete his application. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). ORDER Evidence of a well-grounded claim not having been submitted, compensation under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for additional disability, to include osteomyelitis of T4 and T5 with spinal cord compression and paraplegia, as a result of VA treatment is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals