Citation Nr: 0005055 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 91-50 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES Entitlement to service connection for a lumbar spine disorder. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a seizure disorder based on VA hospitalization during January 1989. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran served on active duty from July 1979 to May 1981. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions of the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA). Service connection is in effect for a disability classified as compression fracture of the thoracic spine with deformity at T-11. A June 1989 rating decision denied service connection for a lumbar spine disorder; in addition, the RO denied compensation benefits under the provisions of 38 U.S.C.A. § 1151 (formerly § 351) for a seizure disorder based on treatment rendered by VA. The veteran perfected a timely appeal to these adverse determinations. This case was before the Board in March 1992, at which time it was remanded by letter to the RO to be held in abeyance pending resolution of litigation, the outcome of which ultimately affected the legal basis for adjudication of claims arising under the provisions of 38 U.S.C.A. § 1151. After the completion of litigation and subsequent amendment of pertinent regulations in March 1995, the Board's stay on adjudication of section 1151 claims was lifted. After the stay was lifted, the RO processed the section 1151 claim under the amended regulation. Thereafter, the issues of service connection for a lumbar spine disorder and section 1151 benefits for a seizure disorder based on VA treatment were recertified for appeal in April 1995. The Board remanded the case in February 1996 for further development. The development requested on remand was completed, and the case was returned to the Board for continuation of appellate review. In response to an inquiry from the Board, the veteran stated that the wished to appear at hearing before a member of the Board in Washington, D.C. A hearing was scheduled for February 2, 2000. The veteran did not appear for the scheduled hearing. In a February 3, 2000 informal hearing presentation, the veteran's representative called the Board's attention to a June 1989 statement in which the veteran had requested service connection for a chronic anxiety state as secondary to inservice injuries. Further, the veteran's representative again claimed entitlement to direct service connection for a seizure disorder, based on an alleged inservice head injury. In addition, the veteran's representative requested an increased rating for service-connected residuals of a compression fracture of T11. None of these issues has been developed or certified for appellate review. Accordingly, they are referred to the RO for any action deemed appropriate. Additionally, the veteran's representative claimed entitlement to compensation under the provisions of 38 C.F.R. §§ 4.29 and 4.30 for a period of VA treatment, the time frame of which was not specified. The only service-connected disability is the residuals of a compression fracture of T11, and it appears that the claim seeks a temporary total rating based on treatment or convalescence involving the thoracic spine disorder. It is maintained that entitlement to Paragraph 29 and/or Paragraph 30 benefits is an issue which is inextricably intertwined with the issue of service connection for a lumbar spine disorder. The Board does not concur with the assertion that this issue is inextricably intertwined with the issue of service connection for a lumbar spine disorder. The issue of entitlement to compensation under the provisions of 38 C.F.R. §§ 4.29 and 4.30 is referred to the RO for clarification and any action deemed appropriate. FINDINGS OF FACT 1. A lumbar spine disorder consisting of a lumbar strain with traumatic arthritis and postoperative residuals of a diskectomy at L4-L5 is due to injury sustained in service. 2. The veteran had a chronic seizure disorder which preexisted VA hospitalization from January 9, 1989 to January 10, 1989. 3. He underwent lumbar myelography during the January 1989 VA hospitalization to evaluate low back pain. 4. A single episode of seizure activity during the January 1989 VA hospitalization was a complication of lumbar myelography. 5. The single episode of seizure activity did not constitute an increase in severity of a preexisting chronic seizure disorder. CONCLUSIONS OF LAW 1. A lumbar spine disorder was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(d) (1999). 2. The requirements for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a seizure disorder based on VA hospitalization during January 1989 have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. § 3.358 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background A report of a service department medical board, which convened in April 1980, refers to a motor vehicle accident in which the veteran was involved on March 3, 1980. It was noted that he was initially treated at the emergency room of an outlying hospital. After his transfer to a service department hospital, physical examination disclosed moderate tenderness over the mid-thoracolumbar spine region. There was no significant separation of the spinous processes. The neurological examination was entirely within normal limits for motor and sensory status. X-ray examination of the lumbar spine revealed multiple levels of anterior vertebral body defects consistent with Schmorl's nodes and Scheuermann's disease. There was a moderate compression fracture of T12 with no displacement. A CT scan of the thoracolumbar spine, performed on March 31, 1980, showed no significant impingement of the cord elements secondary to the 12th thoracic vertebra fracture. The vertebral body fracture was stable with no disruption of the posterior elements. The final diagnosis was compression fracture, body of T11, stable. A report of a service department medical board, which convened in October 1980, indicates that the veteran had continued to have pain at the thoracolumbar junction since his release from the hospital. He also complained of decreased sensation on the plantar and dorsal surfaces of both feet, with sensation in the right foot being more decreased than sensation in the left foot; also, sensation in the great toe was more decreased than in other parts of the foot. Physical examination revealed some tenderness at the thoracolumbar junction. The patellar reflex and ankle reflex were 2+ and normal. Strength of the extensor hallucis longus, peroneals and posterior tibial muscles was normal. There was some central low back pain on straight leg raising. X-rays disclosed extensive Scheuermann's disease with wedging of the thoracic vertebrae from T7 to T12. There were many Schmorl's nodes present. There was reported to be no evidence of fracture on the current films or on films taken at the time of the injury. The final diagnosis was Scheuermann's disease, thoracic spine, T7 to T12, symptomatic, existed prior to enlistment, service aggravated. Subsequent service department treatment records reflect recurrent complaints of low back pain. In March 1981, the veteran reported low back pain after falling down steps. Inservice complaints of low back pain were regarded by examiners as symptomatic of Scheuermann's disease. John J. Fahey, M.D., in a report dated in August 1981, remarked that he was the physician who had examined the appellant at a private hospital, on March 3, 1980, where the appellant had been brought following a motor vehicle accident. It was ascertained at the time of the injury that the veteran had sustained a compression fracture of the body of T11. It was stated that the veteran was later transferred to a service department hospital on March 7, 1980. According to Dr. Fahey, the veteran, currently, continued to complain about pain localized in the thoracolumbar junction. He denied specific radiation of pain into the lower extremities, but noted that, at times, he felt a shooting pain down into the right leg. Upon physical examination of the back, with the veteran standing, there was a definite increase in the thoracic kyphosis, starting at the mid- thoracic region and continuing down over the upper lumbar region, then a compensatory increase in the lower lumbar curve. Rather marked tenderness about the areas of T11 and T12 was detected. There was a definite tightness of the paraspinal muscle mass; however, no specific spasm was identified. Motion of the back was rather markedly limited in forward flexion, right and left lateral tilting, as well as in extension. The veteran had no real point tenderness in the lower lumbar region, nor was there any evidence of any spasm in this area or tenderness in the sciatic notch. Knee and ankle jerk reflexes were present and equal bilaterally. The straight leg raising test on the right reproduced pain in the right buttock and posterior thigh. Motor power and sensation in the lower extremities were fairly well within normal limits. Current x-ray examination of the lumbar spine revealed an increase in the lumbosacral angle, possibly some mild early narrowing of the L5-S1 disc space. Dr. Fahey stated that he had received complete photostatic copies of the veteran's medical records while in the Navy. He referred to a March 20, 1980 CT scan, from T9 to L1, performed by the service department. According to the physician, the CT scan revealed evidence of a preexisting Scheuermann's disease at multiple levels and bulging of the disc anteriorly and osteophytic formation, as well as Schmorl's nodes. It was stated that there was a vacuum phenomenon at T11 and 12 discs. There was also felt to be fractures of the T11 and L1 vertebral bodies, and anterior wedging of T11 and T12. The physician went on to note that the service department interpretation of the CT scan at first referred to old fractures said to be at T11 and L1, whereas a fracture was earlier thought to be mainly at T12. According to Dr. Fahey, the service department also went on to state that there was wedging at T11 and T12, a finding compatible with fracture. It was his assessment that the veteran had sustained a rather severe injury to the thoracolumbar junction; it was difficult to state with certainty the number of vertebral bodies that were actually compressed and/or fractured. According to a March 1985 report from Dr. Fahey, the veteran denied significant back problems, except some stiffness in the thoracolumbar junction after sleeping for too long. He indicated that he could bend and could lift over 150 pounds without any real problems. He stated that he had no leg pain, numbness or tingling. Upon physical examination, there was noted to be a definite increase in the thoracic kyphosis, somewhat more marked in the lower portion of the thoracic area. There was absolutely no tenderness upon compression of the vertebrae. The neurological examination was well within normal limits. Current x-ray examination of the lumbar spine revealed multiple Schmorl's nodes. There were indications of "burned out," probable Scheuermann's disease due to early closure of the iliac apophysis-this had resulted in some mild wedging of the vertebral bodies, mainly in the lower region. It was Dr. Fahey's continued belief that that the veteran probably did have a compression fracture of T11 and possibly T12-the fractures had been minimal. The assessment was Scheuermann's disease with associated compression fracture probably of T11 and T12. Subsequent medical records from VA and private medical sources through 1989 reflect recurrent complaints of pain involving the thoracolumbar junction, with intermittent radiation of pain in the lower extremities. Pain ultimately localized in the low back and was accompanied by lower extremity numbness and tingling. X-ray examination of the lumbar spine in March 1987 showed a notch-like indentation of the superior vertebral plate of L1 near its anterior aspect. Wedging of the anterior aspect of T11 was demonstrated, with indentations of its superior and inferior vertebral plates similar to the findings in L1; T10 also showed a minor degree of notching of its superior vertebral plate. The observed findings were consistent with Scheuermann's disease. It was indicated that the possibility of old trauma, with herniations of the nuclei pulposus into the end plates had to be considered. On x-ray examination of the thoracolumbar spine in July 1988, Schmorl's nodes were identified at the L1, and T9 thorough 12 levels. There was no evidence of acute bony injury. Electrodiagnostic testing in October 1988 confirmed left sciatic neuropathy. A hospital summary reflects that the veteran was admitted to a VA medical facility on January 9, 1989 for a lumbar myelogram with CT scan. On January 10, 1989, the veteran had a seizure, which was reported to be a postoperative complication of the procedures he had undergone. The veteran left the hospital against medical advice on January 10, 1989. When the veteran was evaluated at a VA orthopedic clinic in February 1989, the assessment was that there had been one documented seizure, most likely secondary to omnipaque. The veteran was hospitalized at Harbor Hospital Center from late March to early April 1989, where he underwent an L4-5 diskectomy. The diagnosis was degenerative disc disease L4- 5, central and left. Received in May 1990 was a copy of an excerpt from a medical text. It states that the contrast agents used in myelography may cause nonconvulsive status epilepticus, as well as single convulsions. A hearing was held before an RO hearing officer in September 1990. In testimony, the veteran contended that his current lumbar spine disorder stemmed from injuries to his back in a motor vehicle accident during service. He asserted that he sustained injuries in the accident, not only to his mid-back, but to his low back as well. He also contended that he now had a chronic seizure disorder as a result of contrast dye when VA performed a myelogram of the lumbar spine during hospitalization in January 1989. He asserted that he had been forced to undergo a myelographic evaluation, even though he had informed a VA physician of a prior seizure which the veteran attributed to the administration of contrast dye. He stated that the seizure episode during VA treatment was only the second he had experienced in his life, the first having occurred on December 15, 1988. He also attributed his first seizure episode to dye administered during myelographic evaluation at a university medical center about one week before. In other testimony, the veteran denied postservice trauma to the lumbar spine, and noted that there had been no postservice incidents of lifting which might have resulted in injury to the lumbar spine. Several items of evidence were associated with the record at the September 1990 hearing. A report from Union Memorial Hospital reflects that the veteran was treated at that facility in March 1980 after having been involved in an automobile accident. He sustained a compression fracture of T11 and contusion of the cricoid cartilage. A CT scan and discogram of the veteran's lumbar spine were performed at a facility of the University of Maryland Medical System on December 6, 1988. The assessment was herniated nucleus pulposus at L4-5. Another report from Union Memorial Hospital reflects that the veteran was treated at that facility on December 15, 1988, after he had a seizure episode. Also received at the hearing was a report of a medical incident, dated in February 1990, from Catonsville Community College indicating that the veteran fell over from a chair and began to go into a seizure. A September 1990 statement from the veteran's spouse relates that the veteran had approximately 3 seizures during 1989; on July 4, 1990, he had 2 grand mal seizures within three hours. Records from private physicians, dated from June 1990 to December 1990, reflect that the veteran continued to have pain in the lumbar spine and left lower extremity following the March 1989 lumbar laminectomy and diskectomy. The assessment was that he had experienced some instability from disc disease and subsequent excision, most likely occurring at the L4-5 interspace. Additional items of evidence were associated with the claims folder pursuant to the Board's February 1996 remand order. They are referenced below. X-ray examination of the veteran's lumbar spine was performed on March 3, 1980 at Union Memorial Hospital, where he had been admitted after an automobile accident. The impression was possible fracture of the T11 vertebral body, especially in the anterior half, with some loss of height. Scattered Schmorl's nodes observed were considered a normal variant. A CT scan of the lumbar spine, from L3 through S1, was performed at Union Memorial Hospital in March 1986, following a history of low back pain of two months duration. The impression was slight L4-5 disc protrusion, probably not clinically significant. Associated with the claims folder is a VA form entitled "Request for Administration of Anesthesia and for Performance of Operations and other Procedures." The document, dated January 1, 1989, requested the veteran's permission to perform a myelogram. It was signed by the veteran and by the counseling physician, as well as signed by a witness, not a member of the operating team. A VA orthopedic examination was performed in July 1996. The impression was low back pain with degenerative disc disease. A VA neurological examination was performed in January 1998. The examiner stated that the claims folder had been reviewed. The veteran's history of a seizure in 1989 following injection of dye was noted; clinical findings were recorded. The diagnosis was generalized seizures. In an August 1998 addendum, the examiner expressed the opinion that it was not likely that the myelography, performed in January 1989, resulted in a chronic seizure disorder. The examiner went on to note that the seizure disorder was increased in severity, but not by the myelogram. The assessment was that the increase in severity was due to the natural progress of the seizure disorder and not due to a treatment, that is, the myelogram. The record reflects that the RO determined that the report of the July 1996 VA orthopedic examination was inadequate for adjudication purposes. That determination was made shortly after the examination was performed. The RO then spent the next two years communicating with the VA medical facility so that corrective action could be taken. Ultimately, in November 1998, the veteran was reexamined by the same VA physician who performed the July 1996 examination. It was noted that the claims folder had been reviewed. The physician referred to the inservice automobile accident in 1980 which resulted in collapse of a vertebra at T11. It was the physician's opinion that the veteran sustained a crushed vertebra in an automobile accident while he was in military service. Further, it was his opinion that lumbar disease was not related to the automobile accident. In this regard, the examiner pointed out that a myelogram, performed about a year after the accident , had shown nothing significant. Clinical records, dated from 1988 to 1995, reflect the veteran's treatment at VA medical facilities. They show that he received treatment for chronic back pain and polysubstance abuse. Other conditions noted, included lumbosacral degenerative joint disease, status post diskectomy, hepatitis, seizure disorder, episodic dyscontrol and personality disorder. II. Legal Analysis The Board notes that the appellant's claims are "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). A. Service Connection for a Lumbar Spine Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The appellant asserts that he developed a chronic low back disability as a result of trauma to the lumbar spine sustained in an automobile accident in service in March 1980. He maintains that he injured not only his mid-back in the automobile accident, but his lower back as well. Here, the evidence establishes that he sustained a fracture of T11, a segment of the thoracic spine, and service connection has been granted for that disability. A report of the x-ray examination of the spine, performed at the private medical facility where the veteran was initially treated after the accident, shows that the compression fracture was confined to the T11 segment of the thoracic spine. There was no indication from the report of the spinal x-ray examination, performed on the day of the accident, that the veteran had suffered any damage to the lumbar spine. The Board has taken careful note of statements made by Dr. Fahey, the physician who treated the veteran on the day of the automobile accident. Of particular interest is Dr. Fahey's reference to a service department record, said to have been prepared on March 20, 1980, and reportedly showing x-ray changes indicative of possible fracture to L1, the first segment of the lumbar spine. However, the Board's review of service medical records does not reveal the document to which Dr. Fahey refers. Rather, service medical records refer only to fracture of the eleventh and/or twelfth vertebra of the thoracic spine. The Board has also considered a March 1987 report of x-ray examination of the lumbar spine performed by VA. A finding of an irregularity in the contour of the L1 was variously attributed to Scheuermann's disease or to old trauma of that vertebral body. In view of the medical evidence potentially suggesting inservice trauma to the lumbar spine, the Board obtained further medical opinion as to the etiology of the veteran's current low back disorder. The examiner's opinion was reportedly based on a review of the entire claims folder, including the service medical records. It was the physician's opinion that currently demonstrated degenerative changes of the lumbar spine are not attributable to trauma the veteran sustained in the automobile accident in service. The Board finds that the November 1998 VA medical opinion to be contrary to the preponderance of the totality of the medical evidence now available, to be erroneous in referencing a myelogram having been performed about a year after the inservice accident, and to be entitled to very little probative value. At the same time, the evidence now of record with regard to the issue of service connection for a lumbar spine disorder is favorable to the veteran. As such, the Board will act on that evidence rather than remanding this issue another time. The essential question here is not solely whether the inservice injury which fractured the 11th thoracic vertebra also produced a fracture of a lumbar vertebral body or other residuals of injury which would appear on an x-ray examination or a CAT scan. Rather, there is also a question of other injury to the lumbar spine, such as a lumbosacral strain, which as explained below, continued to exist in chronic form following the injury. In this case, medical records prepared during 1980 repeatedly describe the inservice injury as involving the thoracolumbar spine; injury residuals were also associated with findings of tenderness and pain in the area of thoracolumbar spine. In March 1981, it appears that the low back was again injured when the veteran fell down some stairs. In his August 1981 report, Dr. Fahey, among other things, described a compensatory increase in the lower lumbar curve, limitation of back motion which was obviously a limitation of low back motion, and possibly some early narrowing the L5-S1 disc space. The Board attributes this to the low back injuries the veteran sustained in service. Complaints of pain in the thoracolumbar region continue throughout the 1980's up to the time a diskectomy is performed at L4-L5 in early 1989. The Board is of the opinion that there was substantial low back injury in service, residuals of which consisted of a lumbosacral strain with traumatic arthritis and L4-L5 disc injury, ultimately resulting in the 1989 surgery. Accordingly, a proper basis is provided for granting service connection for a lumbar spine disorder. B. Compensation Benefits Pursuant to the Provisions of 38 U.S.C.A. §1151 for a Seizure Disorder Based on VA Hospitalization during January 1989 In Gardner v. Derwinski, 1 Vet.App. 584 (1991), the Court invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3), remained valid. See Brown v. Gardner, 115 S. Ct. 552, 556 n.3 (1994). 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 the result of hospitalization, medical or surgical treatment, not the result of such 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 were service-connected. 38 C.F.R. § 3.358, the regulation implementing that statute, 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 such 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 coincidental therewith. 38 C.F.R. § 3.358 (b), (c) (1) (1999). 38 C.F.R. § 3.358 (c)(3) (1999) now 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 were intended to result from, the examination or medical or surgical treatment administered. At the outset, the Board notes that the amended regulation, which is based on the above-cited judicial decisions, does not require negligence, fault or accident as a prerequisite to the grant of compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151. However, governing criteria which remain applicable to the disposition of this appeal still require an evidentiary showing that the veteran has additional disability resulting from VA treatment. It is asserted that the veteran has a seizure disorder which resulted from VA's administration of contrast dye when it performed a lumbar myelogram in January 1989. Here, the medical evidence documents that the veteran experienced a seizure about three weeks before he was hospitalized by VA in January 1989. A VA neurologist, who reviewed the veteran's medical history, indicated that a seizure disorder had preexisted the veteran's admission to the January 1989 VA hospitalization for lumbar myelography. The question, then, is whether the preexisting seizure disorder was aggravated, i.e., whether it underwent an increase in severity because of VA treatment. The Board notes that there is no dispute that the specific seizure episode, which took place during the January 1989 VA hospitalization, was the result of the administration of contrast dye. Indeed, the report of the January 1989 VA hospitalization explicitly states that a seizure was a complication of myelography. However, in order for the veteran to be entitled to a grant of section 1151 benefits, the evidence must demonstrate that he has additional disability, in this case, a chronic seizure disorder (in contrast to a single episode of seizure activity), which was aggravated by VA treatment. The Board sought medical opinion from a VA neurologist as to the etiology and course of the veteran's chronic seizure disorder. The specialist's opinion, informed by a review of the claims folder, is that the veteran's seizure disorder did, in fact, increase in severity during VA hospitalization in January 1989; however, the specialist further determined that the increase in severity was not due to the myelogram, but was due to the natural progress of the preexisting seizure disorder. There is no medical evidence of record which contradicts the specialist's opinion. In this regard, the Board has taken note of the passage from a medical text which indicates that the dye used in myelography can produce single convulsions. In fact, the medical evidence demonstrates that the single episode of seizure activity during the January 1989 VA hospitalization was the result of lumbar myelography. However, that treatise evidence does not serve to establish that, in the veteran's case, VA treatment in January 1989 caused an increase in severity of the preexisting chronic seizure disorder. In reaching that determination, the Board has been mindful of the doctrine of the benefit of the doubt. 38 U.S.CA. § 5107(b) (West 1991). The veteran has alleged that he was forced to undergo lumbar myelography at the VA medical facility in January 1989. However, that allegation finds no support in the record which shows that the veteran signed a consent form to lumbar myelography, after having been advised about the procedure. ORDER Service connection for a lumbar spine disorder is granted. Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a seizure disorder based on VA hospitalization during January 1989 is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals