Citation Nr: 0001877 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-32 490A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUE Entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 (West 1991) for additional impairment of the lower back. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Crawford, Counsel INTRODUCTION The veteran had active service from February 1953 to January 1955. In January 1990 entitlement to service connection for back pain on the basis of 38 U.S.C. § 351, now codified as 38 U.S.C.A. § 1151, was denied. The next month, notice was mailed to the veteran. The veteran did not file a timely appeal. In March 1995, the veteran again sought entitlement to compensation on the basis of 38 U.S.C.A. § 1151 for a low back disability. Apparently, in light of Brown v. Gardner, 513 U.S. 115 (1994), in March 1996 the RO reopened and denied the claim, adjudicating the matter on a de novo basis. See Spencer v. Brown, 4 Vet. App. 283 (1993), aff'd 17 F. 3d 368 (Fed. Cir. 1994); but cf. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). That denial was confirmed and continued in November 1996. Thereafter, the record indicates that the veteran continuously prosecuted his claim and perfected an appeal. Given the foregoing, the Board of Veterans' Appeals (Board) also will adjudicate the veteran's claim de novo. On the veteran's substantive appeal, VA Form 9, he checked the box indicating that he desired to appear personally before a member of the Board. In the same section, however, he clarified that he desired a personal hearing before a RO hearing officer. Such hearing was held in May 1998. It is also noted that in November 1997 the veteran stated that he wanted a hearing at the RO level. In light of the foregoing, the Board finds that the personal hearing at the RO satisfied the veteran's request for a hearing as described on his substantive appeal and no further action in this regard is warranted. FINDING OF FACT Medical evidence tending to show a nexus between any impairment of the veteran's lower back and any treatment received at a VA facility has not been presented. CONCLUSION OF LAW The claim of entitlement to disability compensation under the provisions of 38 U.S.C.A. § 1151 for additional impairment of the lower back is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this case, the veteran contends that as a result of medical treatment received at a VA Medical Center in 1986 he has increased impairment of his back. The veteran asserts that while hospitalized an orderly told him to get out of bed. The orderly then walked over to his bed and stripped the sheet from underneath him. The veteran stated that he could not move or call for help. He also stated that because of that incident he received additional units of blood. The veteran also maintains that his operations were not successful and because of pain he had to have hardware removed from his back. Prior to October 1, 1997, applicable law provided that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment . . . , and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation under this chapter . . . shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151. However, that provision was subsequently amended and those amendments were made applicable only to claims filed on or after October 1, 1997. See Pub. L. No. 104-204 § 422(b)(1), (c), 110 Stat. 2926-27 (1996) (found at 38 U.S.C. § 1151 note) (subsection (c) nullifying October 1, 1996, effective date set forth in subsection (b)(1)); see also 38 U.S.C.A § 1151 (1999); Jones v. West, 12 Vet. App. 460, 463 (1999); Boggs v. West, 11 Vet. App. 334, 343-44 (1998) (noting that revised section 1151 applies only to claims filed on or after "October 7 [sic], 1997", pursuant to specific provision of statute); Brown v. Gardner, 513 U.S. 115. As this claim was filed prior to that change, however, the version of the law that did not require a finding of fault on the part of VA is for application in this case. While the veteran is not required to show negligence, error in judgment or other fault in the medical treatment furnished by VA to the veteran in 1992, Brown v. Gardner, 115 S.Ct. 552 (1994), he still has the burden of submitting cognizable evidence sufficient to justify a belief by a fair and impartial individual that his claim under the provisions of 38 U.S.C.A. § 1151 is plausible or capable of substantiation. That is, the veteran must submit competent evidence that the asserted low back disability occurred as a result of VA treatment. 38 U.S.C.A. §§ 1151, 5107(a). Under the language of prior section 1151, claims for additional disability were treated like claims for service connection, see Boggs, 11 Vet. App. at 344-45 (considering prior section 1151 claim as a claim for service connection). For service connection claims, a person who submits a claim for benefits under a law administered by the Secretary 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. § 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 [section 5107(a)]. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally, for a claim to be well grounded under Section 1151, a claimant must submit evidence of each of the following: (1) Medical evidence of a current disability; (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. Jimison, 13 Vet. App. 75 (1999); Jones, 12 Vet. App. 460. Similarly, assuming, without deciding, that a continuity-of- symptomatology analysis would apply in an prior section 1151 case, a claim generally would be well grounded if the evidence submitted showed each of the following: (a) Evidence that a condition was "noted" during his VA hospitalization or treatment; (b) evidence showing continuity of symptomatology following such hospitalization or treatment; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-hospitalization/treatment symptomatology. (Any other element of a successful prior section 1151 claim, such as that the "injury [is] . . . not the result of such veteran's own willful misconduct" would be for consideration in the adjudication of the merits of a well-grounded prior section 1151 claim.) Id. The credibility of the evidence presented in support of a claim is generally presumed when determining whether it is well grounded. See Elkins, 12 Vet. App. at 219 (citing Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995)). Once the claimant has established a well-grounded claim, the Board is required to adjudicate the claim on the merits and consider the other restrictions imposed by this section. See, e.g., 38 U.S.C. § 1151 (must not be the result of the claimant's own willful misconduct); 38 C.F.R. § 3.358 (1996) (additional disability must not be the "natural progress" of the condition). Jimison, 13 Vet. App. at 78. After reviewing the evidence of record presented in this case, the Board finds that the veteran's claim is not well grounded. The record is silent with respect to any medical evidence tending to show that the veteran has additional low back disability as the result of VA hospitalization, or medical or surgical treatment. Here, the Board initially points out that the veteran's back disability existed prior to his March 1986 hospital admission. Review of the record shows that on VA examination in April 1965, traumatic arthritis of the spine was noted and x-rays showed a moderate increase of lumbosacral angle without significant narrowing; sclerosis about the articulating apophyses of L5, S1; minimal lipping of the lumbar vertebral bodies anteriorly; and moderate narrowing of the sacroiliac joints. The record also shows that while hospitalized on several occasions dated from May 1974 to April 1976, the veteran complained of back pain and diagnoses of degenerative arthritis of the lumbar spine and osteoarthritis of the lumbosacral spine were made. In October 1980 W. G. M., M.D., also stated that he had treated the veteran for severe osteoarthritis of the spine and that the veteran required medication for relief of intermittent, unpredictable pain. Further VA outpatient treatment reports dated in September 1985 show complaints of a long-term history of pain and record an impression of possible L5-S1, nerve root compression. The record then shows that in March 1986, the veteran underwent a posterior fusion with Luque rectangle of the L3 to the sacrum. A Surgical Preoperative Note and a Pre-Op Preparation/Explanations Given report show that prior to undergoing surgery, the veteran understood the proposed operation; had an opportunity to ask questions and understood the risks, benefits, and alternatives of operation; and was informed of who would perform the operation. Progress notes associated with the veteran's admission at that time are silent with respect to any incident alleged by the veteran. Additionally, the March 1986 hospital summary report notes that postoperatively, the veteran had usual postoperative pain without other evidence of complications. Thereafter, treatment reports show that the veteran participated in occupational therapy and received follow-up treatment. Because of continued complaints of chronic low back pain, VA hospital reports dated from June to July 1987 show that the veteran underwent a Luque rod removal and computed tomography (CT) scan of the lumbar spine. The diagnoses were retained hardware, status post back fusion with Luque rod, March 1986, and chronic low back pain. VA medical reports dated from April 1988 to April 1989 also document continued complaints of low back pain and participation in physical therapy. In October 1995, N. G. B., M. D., the Chief of Neurosurgery Section, acknowledged the veteran's complaints associated with the remaining wire in his spine and explained that when the wires were being removed, they were found to be incased in very dense bone tissue. Consequently, the doctors proceeded to decompress the nerve routes, follow each nerve route out to the area where it existed with the spine, and to make sure that there was no compression on any of the routes. N. G. B. stated that the decompression process largely uncovered most of the wires and they were safely removed without difficulty. At the lower area of the fusion, however, the last remaining wires were incased in dense bone. Despite the foregoing, the bone was very stable and had solid fusion. To uncover this last wire would substantially jeopardize the stability of the fusion. Consequently, the nerve root at that level was able to be completely uncovered without having to drill off the bony fusion that also included that wire. The wire caused no difficulty and the fusion was quite solid at that lower level. At the next level up, however, the fusion mass appeared to contain a very substantial amount of scar tissue within the area of bone grafts and it was unclear whether the fusion was completely solid. N. G. B. then summarized that the remaining spinal wire was well surrounded by bone and the adjacent nerve root was seen to be well decompressed at surgery. As the operative report, dictated immediately following the operation, clearly stated the remaining wire was something that they were well aware of and a decision was made at surgery to not remove the wire for the reasons described above. The veteran was told that if he continued to experience difficulties with the failed fusion, at some point in the future, a reexploration and revision of the fusion would be required. The record thereafter contains the following: a July 1996 statement from V. H., a physician assistant of the neurosurgery section, stating that the veteran was a patient in August 1995 and at that time he underwent a L3-5 decompression with hardware removal and that he had been followed postoperatively; a January 1996 Medical Record- Nursing Documentation report showing that the veteran complained of an unrelated disorder and stated that he knew the hospital had done something to him; and additional VA treatment reports showing continued complaints associated with low back pain and diagnoses of lumbar spinal stenosis status post implant removal with persistent neurogenic pain and lumbar stenosis failed back surgery syndrome with chronic pain. In April 1998 J. L. M., M. D., stated that he had reviewed the veteran's medical records and added that the surgery performed by VA in 1986, 1988 and 1995, to relieve the veteran's severe incapacitation pain, was understandable and admirable. Unfortunately, they were unsuccessful and the veteran continued to have severe pain. The doctor then stated that it was not his place to make judgment as to the appropriateness of the surgery. However, in performing the surgery, the VA confirmed the service-connected status of the disorder. The physician then noted that the veteran continued to experience pain. At his hearing in May 1998, the veteran testified that while hospitalized in 1986 a physician "ran [him] out" of the hospital the night before surgery. However, after a discussion with the physician, he returned to his room and prepared for surgery the next day. The veteran then testified that a day after surgery, at 5:00 a.m., he was told to get up. In response, the veteran told the male individual that he would not get up. Thereafter the individual went to his bed, threw the sheets up, and jerked the veteran out of bed. The veteran testified that he had lost a lot of blood because of the incident. During the hearing, the veteran also discussed the wires remaining in his back and maintained that leaving the wires in his back was not normal procedure. Instead, it was malpractice. As previously noted, the medical evidence presented in this case fails to show that the veteran has submitted a well- grounded claim. The Board acknowledges the veteran's assertions maintaining that while hospitalized an orderly jerked a sheet from under him and caused additional back impairment. The Board also acknowledges that the veteran's argument that the wires remaining in his spine amounts to malpractice. However, even when assuming, without deciding that the incident with the orderly actually occurred, the claim is not well grounded. The record is devoid of any medical evidence showing a nexus between the veteran's current low back disability and any events that occurred while hospitalized at a VA hospital in 1986. That is, there is absolutely no medical evidence of record indicating that the veteran's current low back disability (claimed additional impairment) was incurred in or aggravated by any hospitalization or medical or surgical treatment. The evidence merely shows that the veteran has a history of chronic low back pain, that he has undergone several back surgeries to alleviate his those symptoms, and that he still complains of low back pain and receives treatment. Given the absence of any medical nexus evidence, the veteran's claim under Section 1151 is not well grounded. See Jimison and Jones, both supra. Additionally, even though the record shows that the veteran has undergone additional surgeries subsequent to 1986 and that he continues to complain of increased pain, there is no medical evidence of a nexus between the veteran's present complaints and any symptoms or treatment received while hospitalized in 1986. Thus, even when assuming the applicability of a continuity-of-symptomatology analysis, without deciding that such analysis is applicable to a prior section 1151 case, the claim remains not well grounded. Jones, 12 Vet. App. 460. In this case, the veteran's testimony is the only evidence of record indicating a nexus between his symptoms and hospitalization period of 1986. That is not enough to well ground the claim. Although the veteran is competent to describe his symptoms, he is not competent, as a lay person, to etiologically relate those symptoms to any treatment or alleged incident occurring at a VA facility. Such determinations require specialized knowledge or training and are therefore beyond the competence of a lay person. Id.; Espiritu, 2 Vet. App. 492. The Board acknowledges that the surgery in March 1986 was to a large degree unsuccessful in that it failed to resolve the veteran's preexisting severe low back pain. It is not demonstrated that the March 1986 surgery or associated treatment provided by VA has caused additional low back disability. It also should be pointed out that prior to undergoing surgery, the veteran was informed of the positive and negative possible risks, alternatives and consequences, and that the veteran consented to the operative procedure. The March 1986 hospital summary report also shows that events surrounding the veteran's surgery pre- and post-operatively were normal. Even in an April 1998 statement, J. L. M., M. D., noted that the attempts to alleviate the veteran's pain were "understandable and admirable." Further, J. L. M. offered no judgment as to the appropriateness of any surgery. Accordingly, the veteran's claim remains not well grounded in this regard. Again, except for the veteran's statements, the record is devoid of any evidence indicative of increased low back disability resulting from treatment received in March 1986 and, as previously noted, without competent, supporting documentation, the veteran's statement fails to meet the burden imposed by section 5107(a). Espiritu, 2 Vet. App. at 494-95. At this time, it is also noted that just because the veteran received medical treatment at a VA facility that does not necessarily mean that service connection is in effect or is warranted. Where the requisite criteria of Section 1151 are not met, disability compensation is not warranted. See Caluza v. Brown, 7 Vet. App. 498 (1995); Jimison and Jones, both supra. Based on the foregoing reasons, the veteran's claim is not well grounded. Because the veteran's claim is not well grounded, the VA has no further duty to assist him in developing the record to support the claim. See Epps, 126 F.3d at 1467-68. The Board is also unaware of the existence of any evidence, which, if obtained, would render the claim well grounded. See generally McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997); Robinette, 8 Vet. App. 69, 77-78 (1996). The veteran's appeal is denied. ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional impairment of the lower back is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals