Citation Nr: 1319640 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 03-05 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities, claimed as due to VA medical treatment in 1994 and 1995 for a cervical spine disorder. REPRESENTATION Appellant represented by: Ronald C. Sykstus, Esq. ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from December 1958 to March 1962. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). In January 2004 and February 2007, the Board remanded this case to obtain additional medical documents. In a September 2009 decision, the Board denied the Veteran's claim and he appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). The Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand (JMR). In an October 2010 Order, the Court granted the motion, vacated the September 2009 Board decision, and remanded the case to the Board for further appellate review. In December 2010, the Board remanded this case for copies of the informed consent forms signed by the Veteran in conjunction with the VA procedures at issue. In an October 2011 decision, the Board denied the Veteran's claim and he appealed the decision to the Court. The Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a JMR. In an October 2012 Order, the Court granted the motion, vacated the October 2011 Board decision, and remanded the case to the Board to provide the appellant with adequate opportunity to submit additional argument or evidence relating to the adequacy of the informed consent given at the time of the VA procedures. In an April 2013 letter, the Veteran's attorney was given 90 days to submit additional argument or evidence. In a May 2013 response, the Veteran's attorney indicated that he had nothing else to submit. The Veteran's attorney has not submitted any additional evidence or argument since the October 2012 Court Order. FINDING OF FACT The competent and credible evidence does not show that an additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment (or not providing treatment) for cervical spine disabilities; that there was an absence of informed consent; that there was an occurrence of an event not reasonably foreseeable; or that VA treatment, or lack thereof, caused or aggravated such a disability beyond its natural progression. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for additional disabilities have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, complete notice was not issued prior to the adverse determination on appeal in that the May 2002 notice letter did not include information on disability ratings and effective dates. Indeed, the Veteran was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's January 2004 and February 2007 remands, VA associated the September 1994 to May 1995 treatment records from VAMC Birmingham with the claims folder and provided the Veteran with a medical examination in March 2007. This examination and its December 2008 addendum, contained a review of the objective evidence of record, the Veteran's current complaints, and a thorough clinical evaluation. The examiner, then offered an opinion as to the relationship between the claimed disabilities and the VA treatment, as well as whether any additional disabilities were caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA, or by an event not reasonably foreseeable during the treatment. Therefore, this examination and addendum are adequate for VA purposes. In compliance with the Board's December 2010 remand, VA obtained additional copies of the informed consent forms signed by the Veteran in conjunction with the VA procedures at issue. Specifically, signed informed consent forms were obtained for the cervical spine procedures performed in October 1994, December 1994, February 1995, and April 1995. Thus VA has complied with the January 2004, February 2007, and December 2010 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Evidence Treatment records from prior to the VA surgeries at issue note the Veteran's complaints of neck pain radiating to his arms, diagnoses of cervical radiculopathy with impingement, and possible degenerative joint disease. See Private treatment records dated from March 1993 to October 1994. On October 13, 1994, the Veteran was admitted to a VA Medical Center (VAMC) for an anterior cervical diskectomy and fusion of C5/C6 based on his history of progressive radicular pain in the left shoulder and associated numbness in the first two fingers of each arm, the failure of physical therapy to ameliorate the symptoms, and the results of a magnetic resonance imaging (MRI) scan which showed an osteophyte at C5/C6. The surgery report documents that the surgery was uncomplicated, that post-operative x-ray images showed the bone plug was in good alignment, and that the appellant reported a significant improvement in left arm pain. The Veteran was discharged on October 17, 1994. The Veteran was readmitted to the VAMC on December 5, 1994. He reported that, after the previous surgery, he felt a pop in his throat (and then began having trouble swallowing) after he tripped and fell while not wearing his neck collar. Radiographic films revealed that the bone plug had popped out, and the appellant was admitted for re-fusion and fixation. The associated records document that the Veteran did very well postoperatively and that he was discharged on December 8, 1994. After this surgery, the Veteran reported recurrent neck pain and other associated symptoms, which were determined to be the result of osteomyelitis, a C4/C5 collapse, and peripheral neuropathy secondary to the cervical arthritis and repeated cervical surgeries. See February 1995 VAMC surgery report; December 1994 Gillespie treatment record. The Veteran was then admitted to the VAMC on February 3, 1995, for a C4-5 corpectomy, fibula strut graft harvest and effusion, and a halo placement. An immediate postoperative cervical spine film was satisfactory though the inferior portion of the graft was somewhat subluxed. Approximately two weeks later, a second set of films were taken, which showed no change in the position of the bone plug. The Veteran was found to be in satisfactory condition with much improvement clinically and with maintained halo placement. The appellant was discharged home on February 21, 1995, in satisfactory condition. The bone graft underwent subluxation, however, and on April 24, 1995, the appellant was readmitted to the VAMC for an exploration of the neck with a repositioning of the bone graft with a bone bank graft. The postoperative notes indicate that there were no complications, that the Veteran tolerated the procedure well, and that postoperative film showed good realignment and good positioning of the bone graft, and the appellant was discharged home on May 1, 1995. See May 1995 VAMC surgery report. It is unclear whether the Veteran still had osteomyelitis at the time of discharge, but subsequent treatment records document that it was resolved by May 16, 1995. See May 1995 VA treatment record. In conjunction with all of the above procedures, the Veteran completed consent and authorization forms for each of the procedures. Multiple copies of those consent forms are of record. The forms are for surgical procedures that occurred on or about October 13, 1994, December 6, 1994, February 6, 1995, and April 24, 1995. In signing these forms, the appellant declared that he understood the nature and purpose of the operation or procedure, he accepted the risks involved, and understood that the possibility of complications occurring as a result of the operation/procedure. The Veteran did not list any exceptions to any type of treatment that might be provided. There is also no indication from the consent forms that the appellant had any objections or reservations to any treatment that he might receive. In other words, the records show that the VA furnished surgical treatment to the Veteran with his informed consent. Subsequent treatment records reflect persistent histories of severe radicular cervical spine pain, for which the Veteran was diagnosed with osteoarthritis of the cervical spine and cervical neuropathy with nerve damage in the upper extremities secondary to the surgeries and osteomyelitis, as well as recurrent histories of headaches, muscle cramps, and pain at the graft site. See e.g., November 1997, April 1998, February 1999 and January, April, and November 2000 Gillespie treatment records; November 2003 Gillespie statement; June 2003 VA treatment record. The records also reflect findings that the Veteran was involved in a motor vehicle accident with no apparent significant change to the cervical spine disorder in September 1996 and that his symptoms were worsened by a head injury in April 2000 and a fall in June 2003. Finally, the records reflect complaints of generalized lower extremity pain which were attributed to degenerative joint disease of the hips and osteoarthritis of the lumbosacral spine with associated symptoms of sciatica. See, e.g., May 2000 Gillespie treatment record. A VA examination was done in September 2002. The examination record reflects the appellant's history of leg pain at the site of the graft, cramps, burning, ankle pain, weakness, swelling, heat, redness, instability, giving way, and abnormal motion. After examination, the Veteran was diagnosed with pain and discomfort of the left leg following tibial bone graft harvest. Another VA examination was conducted in March 2004. The record reflects the Veteran's history of chronic pain, particularly in the neck and upper extremities. After examination and discussion with the appellant, the examiner diagnosed the appellant with post-diskectomy of the cervical spine with fusion and loss of function due to significant pain. The examiner stated that he "cannot be sure that there are additional disabilities resulting [from] the surgeries in 1994 and 1995" and that he did "not believe that they occurred from carelessness, negligence, or lack of proper skill or error in judgment." He added that "the only comment" he had was that "there was lack of continuity by one surgeon." In a March 2005 letter, Dr. Gillespie opined that "the reversal of the lordotic curve, foraminal stenosis and spinal stenosis, as evidence on x-ray, would be the result of the staphylococcal infection you unfortunately contracted as a complication of your initial spine surgery." In May 2005, VA received a statement from a private treating physician. See May 2005 S. Dick statement. The physician noted the Veteran's history of severe chronic cervicalgia with associated headaches, spasm, limitation of motion, and radicular pain with associated numbness. The physician indicated that he had reviewed the Veteran's "rather extensive past medical history," and he indicated that "if the history is only approximately correct," he believed almost all the Veteran's symptoms and findings on exam "accrued subsequent to the surgeries performed at the [VAMC] and were the result of rejection of bone graft and multiple surgeries for osteomyelitic." In other words, he believed the multiple surgeries performed on the neck were the cause of the "single most significant portion" of the Veteran's head and neck pain and left-sided cervical radiculopathy. Nevertheless, Dr. Dick stated also that he adjudged the last surgery as at least being moderately successful. However, the neurologist did not conclude or opine or insinuate that there was a problem or deficiency in the VA hospital care, medical or surgical treatment or examination, or that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. The examiner also did not find that the Veteran's current neck disability was an event which was not reasonably foreseeable. Another VA examination was conducted in March 2007. The record reflects the Veteran's history of chronic moderate burning pain in the left ankle since the bone graft surgery. After examination, review of the record, and discussion with the Veteran, the examiner diagnosed the Veteran with left ankle pain, status-post bone-grafting. The examiner stated that in addition to his neck pain, the Veteran had left ankle pain resulting from the grafting used to complete his cervical spine surgery. The examiner concluded that the disability was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment, however, and he indicated that it was not an event not reasonably foreseeable. In December 2008, VA obtained an addendum opinion from a VA physician. The physician, who indicated that he reviewed the claims file, reported that the Veteran's "current disabilities are not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing care and treatment." The physician also believed that there was no evidence of an event not reasonably foreseeable during the VA treatment. The physician explained that the initial surgery was a complicated cervical spine surgery which "went well." The physician indicated that the Veteran had then suffered a major complication due to not wearing the cervical spine collar which required a second surgery. The physician explained that due to the nature of needing another surgery, the Veteran had an increased inherent risk of complication, noting "each time there is a surgery there is a finite and definite risk of infection and subsequent complication." The physician noted that in this case, the Veteran suffered such a complication, namely the development of osteomyelitis. In the physician's opinion, however, "all the appropriate pre/peri/post op[erative] procedures to minimize infection risk were followed during ALL [sic] his surgeries - as clearly outlined in the op[eration] notes and the anesthesia notes." The examiner added that "once the etiology of the failure of the second surgery was found, [the Veteran] was treated appropriately with the appropriate medications, consultations, and subsequent corrective surgeries in February and May 1995." In sum, the physician found that the residuals that the appellant had had since 1995 were "typical for someone having had [four] spine surgeries." Analysis The Veteran claims that that he now suffers from a disability of the cervical segment of the spine (neck disorder) that was caused by improper VA treatment that occurred in 1994 and 1995. Specifically, in his October 2001 claim, the Veteran complained of continuous problems with his neck, constant pain, severe headaches, numbness in his shoulders and arms, inability to sleep for more than a short period, and inability to work. He attributed these symptoms to his multiple neck surgeries at VAMC Birmingham. Specifically, he stated that he contracted a staph infection after the second surgery in December 1994 and some ordered medical procedures were not completed because his records were lost. Also, he stated that the third procedure did not properly heal, necessitating the fourth surgery. Thus, the Veteran has asserted that "but for" the inadequate and improper treatment he received, he would not be suffering from his current symptoms. He seeks VA compensation benefits under 38 U.S.C.A. § 1151. In his December 2001 statement, the Veteran also reported left leg pain at the site of the bone graph. Under the provisions of 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the Veteran's own willful misconduct or failure to follow instructions, compensation is awarded in the same manner as if the additional disability or death were service-connected. See 38 C.F.R. §§ 3.361, 3.800(a). Although claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection, there are similarities in their adjudication. Boeck v. Brown, 6 Vet. App. 14, 16-17 (1993). A claim for 38 U.S.C.A. § 1151 benefits must be supported by medical evidence of a current disability and medical evidence that the current disability resulted from VA hospitalization, medical examination, or treatment. Applicable regulations provide that where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, or examination, compensation will be payable for such additional disability. 38 C.F.R. § 3.361. 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. 38 C.F.R. § 3.361(c)(1). Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Id. 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. 38 C.F.R. § 3.361(c)(2). 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)(3). 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. 38 C.F.R. § 3.361(d). 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; 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)(1). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from these requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32. In essence, a claimed disability is a qualifying additional disability if such disability was not the result of the Veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, and the proximate cause of the disability was due to either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. In this case, the record clearly indicates that the Veteran signed consent forms prior to each procedure at issue. As noted above, the prior JMR instructed VA to provide the Veteran's attorney with additional time to review these forms, but no additional evidence or argument was submitted after that review. Thus, in addition to noting that these forms on their faces conform to the requirements of 38 C.F.R. § 17.32, the Board notes that the Veteran's attorney has, in essence conceded that point by not providing any argument against them. The record also shows the Veteran's complaints of additional disability following his neck surgeries. With regard to the issue of causation, the December 2008 addendum opinion notes that the Veteran's initial complications occurred due to his failure to follow the discharge instructions given to him by his healthcare providers, i.e. wearing the cervical spine collar. See 38 C.F.R. § 3.361(c)(3). By contrast, the private physicians have opined that the Veteran's additional symptoms are the result of the Veteran's neck surgeries. These opinions make no reference to the Veteran's non-compliance with his discharge instructions. Even if the Veteran's actions are not found to have contribute to causation, no evidence of record attributes the Veteran's additional symptoms to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. Indeed, the VA examiners have specifically found otherwise. See March 2004 VA examination, March 2007 VA examination, December 2008 VA addendum opinion. To the extent that the Veteran has argued fault on VA's behalf, the Board acknowledge Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), which held that a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. While the Veteran may be competent to proved lay evidence placing the onset of his additional symptoms at or after his surgeries, that is not the question at issue. Instead, the question of causation for purposes of 38 U.S.C.A. § 1151 claims is whether 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 VA, or an event not reasonably foreseeable. There is no indication that the Veteran possesses the requisite medical expertise to provide a competent opinion on this question. The weight of the evidence of record is against a finding of carelessness, negligence, lack of proper skill, error in judgment on the part of VA. Likewise, causation has not be attributed to an event not reasonably foreseeable. Moreover, the record shows that each neck surgery was performed with the Veteran's informed consent. Thus, the criteria for compensation under 38 U.S.C. § 1151 have not been met. In summary, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to compensation under 38 U.S.C. § 1151 for additional disabilities. The benefits sought on appeal are accordingly denied. ORDER The claim for compensation under 38 U.S.C.A. § 1151, for additional disabilities, claimed to be caused by surgical treatment provided by the VA, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs