Citation Nr: 1741897 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 13-34 179A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of a laminectomy performed at the Cleveland VA Medical Center (VAMC) in August 1986. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to July 1978 and from August 1980 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was scheduled to appear at the Cleveland RO for a personal hearing before a Veterans Law Judge in November 2016; however, he withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. REMAND The Veteran has asserted entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a laminectomy. After considering the matter on appeal, the Board finds that this claim must be remanded for additional development. With respect to the Veteran's claim under 38 U.S.C.A. § 1151, he contends that he is entitled to compensation for residuals, including DDD of the lumbar spine, of an August 1986 laminectomy performed at the VAMC in Cleveland, Ohio. See, e.g., the Veteran's claim dated November 2009. The evidence of record shows that the Veteran injured his back moving furniture in 1985 and subsequently developed low back and radicular pain. He had a myelogram and computerized tomography (CT) scan in October 1985, which demonstrated a herniated L4-5 disc with cut-off of the left L-5 nerve root. See the VA treatment records dated September 1986. In August 1986, the Veteran underwent a laminectomy, which involved excision of a large L4-5 disc and foraminotomies of L4-5 and L5-S1 on the left side. Id. It was noted that he did well following surgery, "with the exception that the upper most portion of his incision continued to drain as of post-operative day six." Id. It was further indicated that there was excessive pressure on the skin edges during surgery by the retractor; however this complication was not unexpected. Id. He was discharged in September 1986. A May 1987 VA treatment record indicated that the Veteran had residual back pain following surgery. Private treatment records dated in January 1988 documented a diagnosis of recurrent herniated nucleus pulposus. The Veteran then underwent microdecompression of the L4-5 left and intertransverse lumbar fusion in January 1988 at a private medical facility. Private treatment records dated in August 1995 indicated that the Veteran suffered from "chronic back pain since 1988 lumbar fusion." A September 1995 treatment record noted that the Veteran had three operative procedures on his back, laminectomies and discectomies as well as unilateral fusion at L4-5 performed in 1988. The treatment provider indicated that the fusion "did not take and the bone graft dissolved. He now has chronic back pain, soreness and tenderness." See the private treatment record dated September 1995. The treatment provider stated that a magnetic resonance imaging (MRI) performed in 1992 showed some scar tissue and degenerative discs at L4-L5. A continuing diagnosis of herniated disc was indicated. VA treatment records dated from April 2003 documented a diagnosis of DDD. 38 U.S.C.A. § 1151 provides, in pertinent part, that a Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility, and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361 (2016). The Veteran has not been afforded a VA opinion in this matter. As such, the Board cannot determine whether the Veteran currently has an additional lumbar spine disability that was due to the August 1986 laminectomy performed at the Cleveland VAMC, and if so, whether there was medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing the surgery and treatment or whether the consequences of the treatment were not reasonably foreseeable. The Board therefore finds that a comprehensive review of the record should be conducted by a medical practitioner with regard to the Veteran's contentions that the laminectomy performed in August 1986 caused him to develop chronic residuals including DDD of the lumbar spine. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2016) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim); Colvin v. Derwinski, 1 Vet. App. 191, 195 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Accordingly, the case is REMANDED for the following action: 1. The AOJ shall refer the VA claims file to a physician with appropriate expertise. The physician is requested to review the claims file in its entirety including all VA and private treatment records. Then, the physician should respond to the following: (a). Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred additional disability, to include DDD of the lumbar spine, as a result of the August 1986 laminectomy performed at the Cleveland VAMC? (b). If additional disability exists, is it at least as likely as not (50 percent or greater) that the proximate cause of such additional disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (c). If additional disability exists, is it at least as likely as not (50 percent or greater) that such disability was due to an event not reasonably foreseeable? In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Should the physician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled. If the physician is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The physician must provide a rationale for each opinion given. 2. After conducting any additional development deemed necessary, the AOJ should readjudicate the claim, considering all the evidence of record. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2016).