Citation Nr: 1229630 Decision Date: 08/28/12 Archive Date: 09/05/12 DOCKET NO. 06-04 510 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for partial right-side paralysis and dysphagia due to cervical diskectomy and fusion at VAMC St. Louis, Missouri in June 2004. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from July 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 decision by the RO which denied the benefits sought on appeal. The Board remanded the appeal for additional development in June 2009. FINDING OF FACT The preponderance of the medical evidence shows that the Veteran's right-side paralysis and dysphagia was due to an event that was not reasonably foreseeable from cervical surgery by VA in June 2004. CONCLUSION OF LAW Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for right-side paralysis and dysphagia from cervical diskectomy and fusion by VA in June 2004 is warranted. 38 U.S.C.A. §§ 1151, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, in light of the favorable decision in this case, the Board finds that this represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance with its "duty to notify" and "duty to assist" obligations is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Compensation Pursuant to 38 U.S.C.A. § 1151 Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are payable for additional disability not the result of the veteran's own willful misconduct, where such disability was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee, or in a Department facility, where the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C.A. § 1151; see also VAOPGCPREC 40-97. Under applicable criteria, to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). For claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination, actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). Factual Background & Analysis The Veteran contends that while he had some neurological symptoms prior to his cervical spine surgery by VA in June 2004, he has essentially no use of the right side of his body since the surgery. The Veteran asserts that his right-side paralysis and dysphagia was the direct result of the June 2004 surgery and believes that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151. Historically, the evidence showed that the Veteran underwent a VA neurosurgery consult in May 2004, for neck pain and neurological symptoms on the right side, manifested by a tingling sensation, difficulty grasping objects with his fingers and raising his right arm. A VA MRI at that time showed right central ruptured intervertebral disc (RIVD) with cord compression at the C3-4 level. The Veteran was advised that while spontaneous improvement was possible, it was not likely soon and that there was a very significant risk of paralysis, especially if he were to fall. A pre-op surgical note in June 2004, showed that the Veteran was advised of the risks of surgery, including anesthesia, infection, bleeding, injury to local structures - especially the spinal cord and failure to improve), and that he consented to the surgery. The Veteran underwent anterior cervical diskectomy with allograft fusion in June 2004, which involved the insertion of a bone graft at the C3-4 level. The surgical reports showed that the first two attempts to implant the graft were unsuccessful (the bone cracked before it could be seated), but that the third attempt was successful. However, post-operatively, the Veteran could not move his right extremities. A post-op MRI revealed a moderately large ventral and right lateral extra dural defect, possibly recurrent or residual disc herniation or bone fragments, with significant compromise of the spinal cord in the anterior posterior diameter. The Veteran was returned to the operating room where the wound was reopened and the bone graft removed. Additional osteophyte was removed from the disc space and the dura seemed to come forward with the removal of additional bone and did not appear to be under pressure. Another bone graft was then inserted and the wound was closed. Post-operatively, the Veteran had intermittent problems moving his right extremities, sometime not being able to move them at all and at other times, with fair movement. Right-sided strength was also rather variable at times. An MRI showed the spinal canal was still narrow, but without active compression of the spinal cord. The Veteran was examined by VA in May 2005, to determine whether his right-side paralysis was due to the cervical spine surgery in June 2004. Specifically, whether the additional impairment was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. The examiner indicated that the medical records were reviewed and included a detailed description of the Veteran's medical history. The examiner indicated that the Veteran's right-side neurological symptoms were more severe after the surgery, but that there was no evidence of spinal cord injury, retained bone fragments or significant complications to suggest that there was any fault on the part of VA. The examiner commented that if the spinal cord was injured by the fractured bone grafts, it could indicate an instance of fault, but that there was no evidence of carelessness, negligence, lack of proper skill or any error in judgment. In a letter received from the Veteran's representative in November 2007, a private physician indicated that he had reviewed the available medical records and noted that they were incomplete. In order to formulate an adequate assessment concerning the surgery and expected complications, the physician recommended that all of the Veteran's medical records and charts be obtained and reviewed by a neurosurgeon experienced in spine decompression surgery and post-operative complications. Based on a review of the available medical reports of record, the physician opined that the Veteran experienced a decline in his neurological status and an increase in impairment which was not reasonably foreseeable, as a result of the procedures performed by VA in June 2004. In April 2009, the claims file was forwarded to a neurosurgical specialist for an independent medical expert (IME) opinion as to whether the Veteran's current right-side paralysis and dysphagia were due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part during the June 2004 surgery. In May 2009, a physician/professor from the Department of Neuroscience at Marshall University School of Medicine indicated that the claims file was reviewed and included a detailed description of the Veteran's medical history and the June 2004 surgeries. The physician indicated that the Veteran sustained additional disability as a result of the surgical procedures, but that he could find no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The physician noted, however, that critical parts of the medical records were not available for review, such as, the pre-operative neurological examination and the actual radiographic reports - as opposed to the interpretive reports, and that these records would be helpful as a comparison between the pre- and post-operative state of the Veteran's condition. In June 2009, the Board remanded the appeal to obtain all of the medical records pertaining to the Veteran's surgery in June 2004, including all pre- and post-operative evaluations and examination reports. After obtaining a complete record of the Veteran's medical treatment, the claims file was forwarded to a neurosurgical specialist for another IME opinion in March 2012. In May 2012, a physician/professor from the Department of Neurology at Georgetown Medical Center indicated that the claims file was reviewed and included a detailed description of the Veteran's medical history. After reviewing the evidentiary record, the physician concluded that the Veteran sustained additional disability, manifested by right-sided paralysis and dysphagia, as a result of the June 2004 surgeries. Although his assessment as to whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA was somewhat confusing and contradictory, the physician opined that the development of right-sided paralysis and dysphagia were not reasonably foreseeable results - meaning that the results were not considered to be an ordinary risk and were not anticipated by a reasonable healthcare provider. The physician also stated that he was in complete agreement with the statement from Dr. Taub, that the "Veteran experienced a decline in neurological status and an increase in impairment, which was not foreseeable, as a result of the procedures performed by the VA in June 2004." After review of the evidentiary record, the Board finds that the preponderance of the evidence supports the conclusion that the Veteran's right-side paralysis and dysphagia was not a reasonably foreseeable outcome of the June 2004 surgeries by VA. That is, a reasonable health care provider would not have considered the additional impairment to be an ordinary risk of the treatment provided. Therefore, resolving any doubt on this issue in the Veteran's favor, the appeal is granted. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for partial right-side paralysis and dysphagia due to cervical disc fusion by VA in June 2004, is granted, subject to VA regulations pertaining to the payment of monetary benefits. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs