Citation Nr: 1004013 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 08-26 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2009) for residuals of a low back injury based on a November 2006 surgery and hospitalization at the VA Medical Center (VAMC) in West Haven, Connecticut. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD D.S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 through October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran and his friend appeared and offered testimony at an April 2009 Travel Board hearing which was held at the Hartford RO. The Veteran's appeal also initially included the issue of entitlement to nonservice-connected pension. However, that claim was granted by the RO in a November 2008 rating decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In an April 2008 statement, the Veteran alleged "medical malpractice" in connection with an L4 laminectomy performed in November 2006 at the VA medical center (VAMC) in West Haven, Connecticut. At his 2009 hearing testimony, the Veteran maintained that a "glitch" occurred during the 2006 surgery which produced worsening of symptoms in his low back and lower extremities. November 2006 VA hospitalization records and a discharge summary reflect that the Veteran had initially been informed by his treating neurosurgeon that a dural tear had occurred during the surgery. These hospitalization records also document, however, that the Veteran was subsequently advised that he had been misinformed, and that the information concerning the dural tear instead pertained to a different patient. The Board also notes a July 2007 memorandum from the Veteran's neurosurgeon which further documents these events. Nonetheless, post-surgical VA treatment records reflect reports of worsening symptoms of the low back and lower extremities and clinical findings of various residual symptoms. At an April 2007 consultation with his neurosurgeon, the Veteran was advised that his symptoms were likely related to extensive post-surgical epidural scarring. A handwritten October 2008 note from the Veteran's VA primary care physician acknowledges that the Veteran's back pain with associated bilateral lower extremity neuropathy had worsened after his 2006 surgery. To date, the Veteran has not been afforded a VA examination to ascertain whether he has additional post-surgical disability as a consequence of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA treatment providers; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2009); 38 C.F.R. § 3.361 (2009). Given the documented post-surgical worsening of symptoms in the Veteran's low back and bilateral lower extremities, the Board finds that such an examination is "necessary" under 38 U.S.C.A. § 5103A(d) (West 2002). At his Travel Board hearing, the Veteran also asserted that his 2006 surgery was performed by a resident surgeon, Dr. G.G. The November 2006 operative note indeed reflects Dr. G.G. as surgeon, with Dr. J.K. present as the attending surgeon. At the hearing, the Veteran's representative expressed knowledge that training records may be maintained for resident physicians. Efforts should be made to obtain Dr. G.G.'s resident training records, particularly those records which pertain to the Veteran's November 2006 surgery and any post-operative care rendered by Dr. G.G. Additionally, the Board notes that in February 2009 the Veteran was scheduled for a follow-up MRI of his lumbar spine at the West Haven VAMC. Neither the records pertaining to that MRI or to treatment rendered after March 2009 appear to have been requested. Efforts in that regard should be made. 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The West Haven VAMC should be contacted, and all records corresponding to the Veteran's lumbar spine MRI in February 2009 and any treatment rendered after March 2009 should be requested. The resident physician training records for Dr. G.G., particularly those records relating to the Veteran's November 2006 surgery and any post-surgical care rendered to the Veteran, should also be requested. All records obtained pursuant to this request must be added to the claims file. If the search for such records proves unsuccessful, documentation to that effect must be added to the claims file. 2. The Veteran should then be afforded a VA medical examination, with an appropriate examiner, to determine the nature of any residuals of his November 2006 VA surgery. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide a diagnosis for each current disorder corresponding to the claimed spine injury, to include residuals of chronic low back and bilateral lower extremity pain, decreased sensation in the lower extremities, epidural scarring, loss of motion, altered gait, antalgic posture, and fatigue. For each diagnosed disorder, the examiner is also requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the Veteran has additional post-surgical disability as a consequence of: (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA treatment providers; or (2) an event not reasonably foreseeable. A complete rationale should be given for all opinions and conclusions expressed in a typewritten report. 3. Then, the Veteran's claim should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).