Citation Nr: 18146228 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 18-41 736 DATE: October 31, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for cervical spondylosis with stenosis, claimed as hyperextension of neck, is denied. Entitlement to compensation under 38 U.S.C. § 1151 for right upper extremity nerve damage is denied. Entitlement to compensation under 38 U.S.C. § 1151 for left upper extremity nerve damage is denied. FINDINGS OF FACT 1. The appellant did not develop additional neck disability, to include cervical spondylosis with stenosis and hyperextension of neck, due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on fault on the part of VA, or an event not reasonably foreseeable. 2. The appellant did not develop additional right upper extremity disability, to include nerve damage, due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on fault on the part of VA, or an event not reasonably foreseeable. 3. The appellant did not develop additional left upper extremity disability, to include nerve damage, due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on fault on the part of VA, or an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for cervical spondylosis with stenosis, claimed as hyperextension of neck, have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017). 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for right upper extremity nerve damage have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017). 3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for left upper extremity nerve damage have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the Army from September 1963 to September 1965. He is the recipient of the Good Conduct Medal. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant filed a timely Notice of Disagreement (NOD), received in November 2016. A Statement of the Case (SOC) was issued in July 2018. A timely substantive appeal was received in August 2018. Background The appellant contends that he incurred spinal stenosis and nerve damage of the upper extremities as a result of hyperextension of his neck during inguinal hernia repair surgery performed by VA in February 2016. In his November 2016 NOD, he reported that he was in surgery for two or more hours and contended that such was too long. He argued that being in a surgical position for such a period caused him to incur disability from damage to his body. In pertinent part, the record on appeal includes March 2009 X-rays of the cervical spine which revealed degenerative changes at C5-C7. In April 2012, the appellant was noted to have chronic neck and back pain by a VA physician. On February 3, 2016, the appellant was afforded a surgical consultation regarding a right inguinal (groin) hernia repair. The general surgeon explained that the consultation had included a long session with the appellant during which he reviewed the risks and benefits of surgical repair, options on how to perform the repair, healing times, and much more. All questions were answered in detail and with drawings. The appellant decided he wanted the repair to be performed as soon as possible. He also had an umbilical hernia, which he did not want to have repaired yet. The appellant was afforded a presurgical physical examination on February 24, 2016. That same day, the anesthetic risks and benefits, and the possible complications were explained. The appellant agreed to accept the risks for the anesthetics. The appellant provided an informed consent regarding the treatment. On the day of the surgery, the appellant’s consent for treatment was verified. The risks, benefits, and alternatives were discussed. The risk of perioperative positioning injury related to position and immobilization was specifically noted. His positioning for the procedure was verified as in accordance with policy/procedure. At the time of transfer to post-anesthesia care unit (PACU), he was free from signs or symptoms of injury related to positioning. In March 2016, the appellant had a postoperative clinical visit with the general surgeon. The appellant was noted to have a good outcome to date following the right inguinal hernia repair. He was now asymptomatic at rest and had minimal soreness when active. It was noted that this clinical visit was a long session during which the operation and report were discussed. Many questions were answered and the surgeon used drawings to explain. The appellant went over the activity restraints again, as well as the healing times. He was ambulatory with a steady gait. He was alert and oriented to all spheres. Pain was 0/10. On April 7, 2016, the appellant presented with swelling on the right side of the neck. He endorsed pain from the collarbone to behind the right ear. He stated that there was a knot above the right ear on the scalp. Such was noted to be very painful. The appellant stated that the pain began four weeks prior and was 6/10. He stated that pain was worse with neck movement. He denied trauma or injury. On April 22, 2016, the appellant was seen for continuing neck pain with swelling on the side of the head. He wanted to make sure that it was not a blockage. He wondered if it might be something in a lymph node from his February surgery. On May 2, 2016, the appellant was seen for recurring neck pain, which had been present for approximately eight weeks. An MRI of the cervical spine was performed in May 2016; and he was referred to neurosurgery. The appellant was seen by neurosurgery in June 2016. He described an occasional crick in his neck which comes and goes on occasion, in addition to a little soreness and some trouble turning his head to the right. Such had been present for a long time, but there was very little pain or discomfort. Since his February 2016 surgery, he has experienced pain in the upper right neck that will start at the base of the skull where there was a sort of knot. The pain radiates down the side of his neck on the right side but did not radiate into his arms. There was no tingling, numbness, or other unusual sensation in either arm. The appellant described this as more of a pressure sensation behind the ear. Examination of the neck revealed limited rotation, with 25 degrees to the right and 45 degrees to the left. There was slight discomfort with rotation to the right and with extension. No neck masses were palpable. Neurologic examination was also performed. The impression was cervical spondylosis and cervical spinal stenosis, with related neck pain. The neurosurgeon suspected that the hyperextension required for intubation during the February 2016 surgery may have been an aggravating factor which triggered his current neck pain. Cervical traction was recommended as it may help lessen muscle spasm, tightness, and discomfort. A VA medical opinion was obtained in July 2016. The claims file was reviewed. The VA physician outlined the course of treatment regarding the February 2016 surgery and the appellant’s neck pain following such surgery. It was emphasized that the appellant signed an informed consent, which discussed the known risks and side effects of the procedure, including, but not limited to, damage to nerves, temporary or permanent pain, numbness or weakness which may be discovered during the procedure or later, and long-term pain. These risks and side effects were discussed with the appellant on multiple occasions in February 2016 prior to the surgery, including the day of. Positioning was performed per protocol to reduce injury during the procedure. 2009 X-rays revealing degenerative changes of the cervical spine and a 2012 clinical note indicate that the appellant had neck pain prior to the February 2016 surgery. The VA physician opined that it was at least as likely as not that the appellant experienced additional disability in the form of increased neck pain following the February 2016 hernia repair. Prior to surgery, he had an occasional, intermittent crick in the neck, a little soreness, and some trouble turning his head to the right. Since his surgery, he described significant right-sided neck pain. The physician noted that the appellant had described pain as 0/10 in March 2016 following the surgery, but it was likely such was only with respect to hernia pain, as that was what the appointment was for. However, the VA examiner opined that it was less likely than not that additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault. Clinical records document that the appellant was afforded an extensive discussion of risks and benefits of the surgery on February 3, 2016. On February 24, 2016, and the day of surgery, the risks, benefits, and possible complications were again discussed and the appellant signed an informed consent. The appellant, after being afforded this information, chose to proceed with the surgery. The VA physician explained that chronic pain and damage to nerves are known complications of surgery and are included in the signed informed consent. Further, at the time of surgery, operative notes document that the appellant was positioned per policy/procedure to avoid perioperative positioning injury. As informed consent was documented multiple times and surgery protocols were followed to decrease risk of injury, the physician concluded that there was no evidence to suggest that the appellant incurred additional disability from carelessness, negligence, lack of skill, or similar incident of fault on the part of VA. Likewise, the physician explained that, while one cannot predict whether particular complications will occur in a given case, there are known risks and complications with respect to the hernia surgery performed. Precautions were taken to reduce the risk as much as reasonably possible. Thus, the appellant did not incur additional disability from an event not reasonably foreseeable. Indeed, the informed consent included the risks of pain and nerve damage. The VA physician further opined that there was no evidence that VA failed to timely diagnose or treat the appellant, or allowed a disease or disability to continue to progress. There was no documentation that the appellant complained to VA of worsening neck pain until more than one month after his surgery. When he sought medical attention, he was prescribed medication and scheduled for a follow-up. Imaging studies were performed and he was afforded a neurosurgery consultation. An addendum opinion was obtained in October 2016. The claims file was reviewed. The VA physician concluded that there was no documented evidence of a permanent aggravation of the appellant’s neck pain beyond the normal progression as a result of his hernia surgery. The appellant was seen in June 2016 by neurosurgery for neck pain, which he reported had been present since the February 2016 surgery. Following evaluation, traction, gentle range of motion, and positioning were ordered. The appellant was to follow up with neurosurgery again if needed. Later in June 2016, when seen for conditions other than his neck, he reported that his pain was a “0” on a scale of 10. Indeed, to date, there was no documented medical evidence that the appellant continued to experience increased neck pain or that he requested to be seen for ongoing neck pain. Therefore, the VA physician concluded that the appellant’s preexisting neck pain transiently increased after his hernia surgery, but there was no evidence of a permanent aggravation beyond the normal progression as a result of his hernia surgery. In November 2016 and April 2017, the appellant complained of continuing neck and back pain, which increases with ambulation. Applicable Law Veterans who sustain an additional disability as the result of VA hospitalization, medical or surgical treatment, vocational rehabilitation, or examination shall receive disability compensation in the same manner as if such disability or death were service connected. 38 U.S.C. § 1151. A disability is a qualifying additional disability if 1) it was not the result of the veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment; or examination furnished to the veteran under any law administered by VA, and 2) 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. Id. In determining whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran’s condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c) (1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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). 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 or medical or surgical treatment caused the veteran’s additional disability or death; and 1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d). Entitlement to Compensation under 38 U.S.C. § 1151 As set forth above, in order to establish entitlement to compensation under 38 U.S.C. § 1151, the evidence must show that 1) the appellant has an additional disability which was caused by VA medical care; and 2) that the proximate cause of such disability was 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. Initially, the Board affords minimal probative weight to the October 2016 addendum opinion that the appellant only experienced a transient aggravation of his neck pain beyond the normal progression, as a result of his hernia surgery. While the VA physician noted that the appellant described pain as 0/10 in June 2016 when being seen for conditions other than his neck, the appellant has reported continuing neck pain, including in April 2017. In addition, the June 2016 neurosurgeon suspected that the hyperextension required for intubation during the February 2016 surgery may have been an aggravating factor which triggered the appellant’s current neck pain. Affording the appellant the benefit of the doubt, the Board finds that the Veteran has additional disability, at the least in the form of increased pain which appears to have persisted. However, this is not dispositive of the issue, because showing that a veteran received care or treatment and that the veteran has an additional disability does not establish causation for purposes of 1151. See 38 C.F.R. § 3.361(c)(1). Likewise, even if there were additional disability of the neck and right and left upper extremities, as set forth below, the Board finds that the second criterion has not been met for the neck, right upper extremity, or left upper extremity. In that regard, the July 2016 VA physician explained that the appellant’s reported worsening neck pain was reasonably foreseeable. The July 2016 VA physician explained that the appellant’s signed informed consent discussed the known risks and side effects of the hernia repair. These known risks and side effects include damage to nerves and temporary or permanent pain. The VA physician also observed that the appellant was positioned per policy/procedure to avoid the known risk of perioperative positioning injury. Informed consent was documented multiple times and surgical protocols were followed to decrease risk of injury. Further, VA timely diagnosed and treated the appellant when he first complained of increasing neck pain. In addition, the record indicates that any additional neck, right upper extremity, or left upper extremity disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part. As set forth above, the July 2016 VA medical opinion reflects that proper precautions were taken with respect to the appellant’s positioning to minimize the known risk of perioperative positioning injury. The physician further concluded that there was no evidence to suggest that the appellant incurred additional disability from carelessness, negligence, lack of skill, or similar incident of fault on the part of VA. The Board has considered the appellant’s lay history of symptomatology throughout the appeal period. He is certainly competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). While he has contended that the surgery took too long and that his neck was thus hyperextended for too long a period, he is not competent to determine the cause of his symptoms or to opine as to the reasonableness of the length of the hernia surgical procedure because medical inquiry into biological processes, anatomical relationships, and physiological functioning would be required. Such internal physical processes are not readily observable and are not within the competence of the appellant in this case, who has not been shown by the evidence of record to have medical training or skills. The Board finds the July 2016 VA medical opinion to be of greater probative weight than such lay assertions. Additionally, although the appellant is competent to report additional neck pain, his statements must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the July 2016 VA physician explained the reasons for her medical opinions regarding the quality of VA treatment and based her conclusions that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, and that there was no event which was not reasonably foreseeable upon a thorough review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Therefore, the Board finds that the July 2016 VA opinion, which is well-reasoned and based on a review of the evidence of record, is entitled to greater probative weight. Further, the Board has reviewed the evidence of record and medical records indicate that the appellant did indeed provide informed consent for the procedure, the risks and complications were discussed, and the appellant’s positioning for the procedure was verified as in accordance with policy/procedure due to the known risk of perioperative positioning injury. Likewise, clinical records indicate that, at the time of transfer to PACU, he was free from signs or symptoms of injury related to positioning. Thus, the probative value of the July 2016 VA medical opinion is strengthened as it is consistent with the contemporaneous clinical evidence of record. The appellant has not produced a medical opinion to contradict the conclusions set forth in the July 2016 VA medical opinion. The appellant has been afforded ample opportunity to present competent medical evidence in support of his claims, but has not done so. It is the claimant’s responsibility to support a claim for VA benefits. See 38 U.S.C. § 5107(a). Thus, the July 2016 VA medical opinion stands unchallenged as competent evidence on this crucial question of whether the appellant experienced any additional neck or upper extremity disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, or an event not reasonably foreseeable. As there is no competent medical evidence that the appellant experienced any additional neck or upper extremity disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, or an event not reasonably foreseeable, compensation under 38 U.S.C. § 1151 is not warranted. As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel