Citation Nr: 18142178 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 15-10 976 DATE: October 16, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability is denied. FINDINGS OF FACT The preponderance of evidence shows the Veteran’s post-surgery pain is the result of foreseeable scarring, and not due to carelessness, negligence, lack of proper skill, error in judgment, or lack of informed consent. CONCLUSION OF LAW The criteria for entitlement to benefits pursuant to 38 U.S.C. § 1151 for an additional disability have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.102, 3.358. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability. Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability in the same manner as if that additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability was (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. § 1151(a). To determine whether a Veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability. Merely showing that the Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). 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). The proximate cause of disability is the action or event that directly caused the disability, 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the additional disability. 38 C.F.R. § 3.361(c). It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, representative’s informed consent. 38 C.F.R. § 3.361(d). Whether the proximate cause of a Veteran’s additional disability 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). The Veteran contends that post-surgery pain and limitation of motion are due to carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable. Prior to surgery in September 2005, a private doctor on consultation from VA diagnosed lumbar spondylosis with discogenic disease and arthritic disease as the cause of the Veteran’s lumbar pain. The doctor noted abnormal lumbar imaging which showed spondylotic changes with stenosis at L4-L5 and L5-S1. The doctor opined that although lumbar decompression with interbody fusion and internal stabilization was not guaranteed to relieve pain, there was a greater possibility than not that surgery would help. The doctor noted that the Veteran was informed of the rationale for the surgery, and the risks and potential complications such as failure to achieve pain relief, bladder or bowel impairment, unintended tears or puncture of the spinal cord membrane, paralysis, and death. The doctor also noted that the Veteran and spouse affirmed the desire for surgery and signed an appropriate consent form. The operation report does not indicate any complications during the surgery. After surgery in December 2005, the private doctor reviewed imaging results and noted that no hardware complication was present, that graft material was present at the intervertebral disc space, and that vertebral body alignment was anatomic. The post-operative diagnosis of lumbar spondylosis with discogenic disease and arthritic disease was the same as prior to the surgery. Two weeks after surgery, the private doctor noted the Veteran improved, and that post-operative imaging were good. The Veteran reported pain to be as not as severe as before the surgery, and that less medication was required. Six weeks after surgery, the doctor noted an unremarkable examination and good imaging results. In March 2006, the doctor opined the Veteran had post-laminectomy syndrome due to deconditioning. The doctor recommended physical therapy. The Veteran was notified of any medical or lay evidence necessary to substantiate the claim on September 8, 2011. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In January 2015, VA obtained a medical opinion regarding the Veteran’s claim. The VA examiner reviewed the medical records, to include imaging results from July 2013. The examiner noted scarring changes at L4-L5 and L5-S1, which caused impingement of the nerve roots. The examiner opined that the scarring was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment, or an event not reasonably foreseeable. The examiner reasoned that scarring is a known occurrence after surgery and there is no indication that any problems occurred during surgery. The examiner further opined that the Veteran was provided appropriate care and referrals throughout treatment. The Board finds the January 2015 opinion to be the most probative evidence. The examiner was fully informed of the Veteran’s history and reviewed medical records and imaging. The examiner provided an articulated opinion supported by sufficient reasoning. Moreover, the examiner’s opinion was supported by the evidence. Although the examiner opined that lumbar and sacral scarring was an additional disability caused by the surgery, the examiner reasoned that scarring is reasonably foreseeable and not the result of negligence. The Board finds that opinion is consistent with the evidence since the operation report did not indicate any complications, imaging immediately following surgery in December 2005 were noted to be good, and imaging in July 2013 did not note any abnormalities other than scarring and nerve impingement, which were opined to be foreseeable results of lumbar decompression with interbody fusion and internal stabilization. Thus, there is no indication the surgeon failed to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361(d)(1). The Board also finds that opinion is consistent with the evidence since the surgeon opined prior to surgery that the fact the Veteran had been symptomatic for over 20 years suggested the severity of the condition and the possibility that he was not likely to receive the complete resolution of pain. Additionally, the January 2015 examiner noted that scarring is a known occurrence after spinal surgery. Thus, the presence of pain following surgery was reasonably foreseeable. 38 C.F.R. § 3.361(d)(2). Moreover, the Veteran was informed of the risks and complications associated with surgery, and consented to undergo the surgery. 38 C.F.R. § 3.361(d). The Board has considered the Veteran’s statements regarding the crooked fusion of vertebrae from surgery. The Board acknowledges that the Veteran is competent to attest to the occurrence of lay-observable events or the presence of a disability or symptoms of a disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). However, the clinical findings reported on examination are more probative than the Veteran’s statements as he is not shown to have the requisite education, experience, and training to determine whether vertebrae were fused crooked. Smith v. Derwinski, 1 Vet. App. 235 (1991). Moreover, there is no medical record or opinion which indicates the surgery was not performed correctly. Accordingly, the Board finds the medical opinions interpreting the January 2006 and July 2013 imaging results, which do not indicate improper fusions, are the most competent and probative evidence of record. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and thus entitlement to compensation under 38 U.S.C. § 1151 for residuals of lumbar surgery is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel