Citation Nr: 18147797 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-33 602 DATE: November 6, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residual paralysis due to spinal fusion surgery is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, he has additional disability of residual quadriplegia because VA providers did not exercise the degree of care that would be expected of a reasonable health care provider. CONCLUSION OF LAW The criteria for entitlement to VA compensation under 38 U.S.C. § 1151 for residual paralysis due to spinal fusion surgery have been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1969 to December 1970. His decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Jackson, Mississippi, that, in pertinent part, denied the above claim. Entitlement to compensation under 38 U.S.C. 1151 for residual paralysis due to spinal fusion surgery. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a Veteran if it was not the result of the Veteran’s willful misconduct and either the disability was proximately caused by the provision of training and rehabilitation service by the Secretary as part of an approved rehabilitation program or the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title (“VA treatment”), 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. To determine whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the VA treatment upon which the claim is based to the Veteran’s condition after such care or treatment has stopped. VA considers each body part involved or system separately. 38 C.F.R. § 3.361 (b). To establish causation, the evidence must show that VA treatment resulted in the Veteran’s additional disability. Merely showing that a Veteran received VA treatment and that the Veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361 (c)(1). VA treatment cannot cause the continuance or natural progress of a disease or injury for which 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)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing treatment proximately caused a Veteran’s additional disability, the Veteran must show that VA treatment caused the Veteran’s additional disability, and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the treatment without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. 38 C.F.R. § 3.361 (d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran asserts that VA failed to provide proper treatment during a spinal fusion surgery performed on January 10, 2013, at the Memphis, Tennessee, VA Medical Center. Specifically, the Veteran contends that the attending surgeon used a Gelfoam device during the procedure that was placed in disc space between cervical spine discs C5 and C6, that was not removed (in accordance to medical standards), and that resulted in additional disability of quadriplegia. A review of the medical evidence of record shows that the Veteran underwent cervical spine surgery in January 2013 as he had reported neck pain with accompanying arm pain, right greater than left. He also reported that his fingers were numb on both sides. He did not have problems with buttoning his shirt or opening jars, but stated that his arms would feel weak sometimes. Magnetic resonance imaging (MRI) studies had revealed spondylosis with spinal stenosis at the C5-6 level. The assessment was C5/6 stenosis, and the Veteran consented to undergoing surgery. On January 10, 2013, the Veteran underwent a C5/C6 anterior cervical discectomy fusion. The VA operative report shows pre- and post-operative diagnoses of C5-5 stenosis with myelopathy. In the detail of the procedure, in pertinent part, it is shown that the surgeon used Gelfoam for hemostasis at some point during the surgery. It is not indicated anywhere that the Gelfoam was removed. Following the procedure, the Veteran reported unresolved numbness in the fingers, bilaterally, weak grip in both hands, and weakness in the lower extremities. A subsequent MRI revealed that the graft looked like it had migrated posteriorly compressing against the spinal cord. It was decided that the Veteran was to be returned to the operating room emergently to revise the hardware, to which he consented. A subsequent surgery was then performed for the removal of disk space hematoma and revision of anterior cervical discectomy and fusion. The post-operative diagnosis was cord compression due to hematoma. The Veteran was then discharged with incomplete quadriplegia. A VA examination report dated in June 2013 shows that an opinion was requested as to whether the Veteran’s quadriplegia was proximately due to the C5/6 anterior cervical discectomy and fusion. A VA nurse practitioner described that the cervical discectomy was performed in January 2013 at the Memphis VA Medical Center wherein after the procedure while in the recovery room, the Veteran lost fine motor movement in his hands. As a MRI study revealed the graft had migrated and was compressing against the spinal cord, the Veteran was taken back to the operating room and the situation was corrected. The Veteran continued to experience numbness and weakness in his arms and hands. The nurse practitioner explained that complications of surgery for cervical radiculopathy and/or myelopathy were uncommon but included spinal cord injury (one percent of cases), nerve root injury (two to three percent) and instrumentation or device failure (74 percent). Additional complications seen with anterior surgical approaches in retrospective studies include transient dysphagia (10 percent), recurrent laryngeal nerve injury (two to three percent), esophageal perforation (one percent), vertebral artery injury (one percent), and superficial wound infection (one percent). The Veteran experienced instrument failure of the graft that resulted in spinal cord injury. In reviewing the pre-operative consent form, the Veteran was said to have been made aware of the multiple possible complications that might occur during this procedure, including those listed above. Although this was a rare complication of this procedure it does happen. The nurse practitioner opined it was less likely as not that additional disability resulted from an event that could have reasonably been foreseen by a reasonable healthcare provider, a failure on the part of VA to timely diagnose and/or properly treat the claimed condition thus avoiding the disease or disability to continue to progress; and the claimed disability, although occurring at the VA, was not intentionally caused by or became worse as a result of the VA treatment at issue and least likely as not additional disability has not resulted from carelessness negligence lack of skill or similar incidence of fault on the part of the attending VA personnel. The surgery was said to be well documented with accepted techniques. The complication was found timely in the recovery phase of the surgery and attempts to correct it were immediate. A lay statement from the Veteran’s spouse dated in August 2014 shows that she indicated that she was present with the Veteran prior to both procedures, and that during their briefing, at no time were spinal injury side effects specifically discussed. She indicated that the VA surgical resident talked in general terms, and predicted that there would be no issues, with the Veteran feeling a lot better once completed. The Veteran reiterated these contention in a separate statement also dated in August 2014. A letter from H. D. Segall, M.D., a private radiologist, dated in November 2014, shows that the MRI studies of the Veteran prior to and following his January 10, 2013, surgery were reviewed. Prior to the surgery, the findings in August 2012 revealed multi-level disc desiccation with lower cervical posterior protrusion of disk/osteophyte material, greater on the right side, causing significant cord impingement and compression superimposed upon spinal stenosis. The January 10, 2013, findings revealed post-operative changes including precervical edema. Desiccated discs were seen at C2-3, C3-4. C4-5, and C6-7. Cervical spinal stenosis was noted. A fragment at the C5-6 graft showed significant cord compression and impingement best shown on the axial studies. The compression was central but slightly greater on the right side. A March 18, 2013, study shows that there was a removal of the compression graft material but with bright cord signal on T2 – weighted images indicative of myelomalacia. A letter from B. E. Van Dam, M.D., an orthopedic surgeon, dated in July 2014, shows that the VA and private records of the Veteran were reviewed. The Veteran was said to have had symptoms of cervical myelopathy secondary to spinal cord impingement at C5-6. Indeed, a preoperative cervical spine MRI performed in August 2012 revealed disk desiccation loss of disk height and posterior disk protrusion at C4-5, C5-6, and C6-7 with the most advanced degenerative changes present at C5-6. At that level the axial images reveal stenosis sufficiently advanced to cause flattening and compression of the anterior spinal cord. On January 10, 2013, the Veteran underwent an anterior cervical diskectomy and interbody fusion at C5-6. In his operative report, the VA surgeon was said to have described removal of the posterior longitudinal ligament as well as posterior osteophytes. He reported placing Gelfoam, a hemostatic sponge, in the disk space. Significantly, he did not describe removing it. After inserting the Gelfoam, the VA surgeon reported inserting a prosthetic spacer, 7 millimeters in height, filled with bone graft material into the evacuated disk space. Thereafter, he attached an anterior cervical plate. The record was said to indicate that while in post-anesthesia recovery, the Veteran evidenced weakness in his hands and lower limbs. As a consequence, a MRI was repeated and revealed what the radiologist described as disk material within the spinal canal at the level of C5-6 causing deformity of the spinal cord. Following review of the MRI images and knowing that the C5-6 disk had been removed by the VA surgeon before the study, Dr. Van Dam was able to state that the material was not disk. The Veteran was then said to have been returned to surgery later on January 10, 2013, wherein the surgeon described removal of the anterior plate and the intradiskal spacer and finding a hematoma within the disk space. After removing it, he reinserted the spacer and reattached the plate. A cervical spine MRI dated in March 2013 revealed no significant residual stenosis at C5-6, but there was signal change within the substance of the spinal cord at that level consistent with a spinal cord injury. By report, the Veteran had increased neurologic deficits in his lower limbs, as well as bowel and bladder incontinence, since the January 2013 surgeries. By report, these neurologic deficits were not present preoperatively. Dr. Van Dam concluded that the Veteran sustained an injury to his cervical spinal cord at the level of C5-6 as a consequence of negligence on the part of the VA surgeon. Specifically, the VA surgeon placed Gelfoam within the C5-6 disk space and did not remove it before inserting an intradiskal spacer. Gelfoam sponges were said to absorb blood and other fluids, consequently, the sponge increases its volume. Therefore, it cannot be left in a closed space without risk of compressing neighboring structures. In this instance, the intradiskal spacer “closed the door" over the Gelfoam. Once the Gelfoam sponge absorbed blood within the disk space it expanded in the direction of least resistance – the spinal canal. In doing so, it generated enough volume to also compress the spinal cord and cause a neurologic injury. Despite revision surgery the same day, a permanent neurologic injury was sustained. Dr. Van Dam concluded that this was completely avoidable had the VA surgeon merely removed the Gelfoam prior to insertion of the intradiskal spacer as required by the standard of care. A VA examination report dated in October 2015 shows that the examining VA physician reviewed the evidence of record and commented that the first VA opinion that suggested that there had been no carelessness or negligence involved had been made by a nurse practitioner. The examiner then indicated that the July 2014 medical opinion from Dr. Van Dam suggesting negligence by the VA surgeon was made by a fellowship trained military and civilian spine surgeon. The VA examiner indicated that Dr. Van Dam’s opinion is given great weight due to his experience as a fellowship trained spine surgeon, and the opinion of the nurse practitioner is given less weight as the nurse practitioner does not have the training, experience, or background of the spine surgeon to be able to address the technical aspects of this case. As the VA examiner was also not a spine surgeon, it was felt that an additional “tie breaker” opinion should come from another spine surgeon with similar credentials who could speak to whether the standard of care was breached in this case. A VA examination report dated in March 2016 shows that the VA examiner, an orthopedic surgeon, indicated that when the Veteran was evaluated pre-operatively in December of 2012, the note from that encounter shows that the Veteran had been advised that paralysis was one of the risks that could occur. It was also noted that the Veteran’s condition was significant and surgery was indicated. The examiner noted that the allegation was that this surgery was done in a negligent manner by failing to remove Gelfoam. The examiner stated that it was not known whether the Gelfoam had been left in. Even giving the benefit of the doubt and assuming it was left in, the examiner stated that such action was unlikely a failure of standard. The examiner stated that although medical literature did report that Gelfoam can absorb blood and become stiff and produce pressure on the cord, those reports do not describe what occurred in this case since paralysis was noted immediately post-operatively here, rather than a week or a few weeks later as reported in the cases published, since it takes a few days for the Gelfoam to become saturated, then stiffen. Additionally, the examiner explained that Gelfoam routinely need not be removed as Dr. Van Dam had opined. The examiner indicated that none of the published cases recommend that the Gelfoam always must be removed but rather they advise that the surgeon should be aware that if a delayed paralysis comes on, that Gelfoam be considered as one of the possible causes. The examiner stated that Gelfoam was still approved to be left in the wound at this time. The examiner stated that what happened here was an unlikely occurrence considering how often Gelfoam is used and how few cases of problems have been noted. The examiner opined that the management of this unfortunate situation was quite appropriate. The moment it was realized that the patient had marked weakness, action was taken. The examiner concluded that the appropriate standard of care had been met before, during and after the initial surgery. The Veteran subsequently submitted various treatises concerning the use of Gelfoam in surgeries. These included the manufacturer’s published material containing Contraindications and Warnings. In the Contraindications section, it is indicated that Gelfoam “should not be placed in intravascular compartments because of the risk of embolization.” In the Warnings section, it is specifically indicated that “while packing a cavity for hemostasis is sometimes surgically indicated, Gelfoam should not be used in this manner unless excess product not needed to maintain hemostasis is removed. Whenever possible, it should be removed after use in laminectomy procedures and from foramina in bone, once hemostasis is achieved. This is because Gelfoam may swell to its original size on absorbing fluids, and produce nerve damage by pressure within confined bony spaces. The packing or wadding of Gelfoam, particularly within bony cavities, should be avoided, since swelling to original size may interfere with normal function and/or possibly result in compression necrosis of surrounding tissues. The Board has reviewed all evidence in the claims files and finds that the weight of the evidence for and against the claim is at the very least in relative equipoise, and that the Veteran sustained an injury to his cervical spinal cord at the level of C5-6 as a consequence of negligence on the part of the VA surgeon at the Memphis VA Medical Center on January 10, 2013. The Board has considered the June 2013 opinion of the VA nurse practitioner, however, finds it to be of limited probative value as the nurse practitioner was deemed not to have sufficient training to render an opinion on such a complex issue by the VA examiner in October 2015. The Board has also considered the March 2016 opinion of the VA examiner, however, it is also of limited probative value as the opinion suggests that none of the published cases recommend that Gelfoam always be removed, while the manufacturer’s own instructions warn that failure to remove the Gelfoam would result in swelling producing nerve damage or necrosis or surrounding areas. This was supported by the opinion of Dr. Van Dam. As Dr. Van Dam is a fellowship trained military and civilian spine surgeon, and as his opinion appears to be consistent with the treatise evidence that has been incorporated into the record, the Board finds the opinion to be more probative as the critical elements at issue. (Continued on the next page)   Nevertheless, the Board finds that the evidence is at the very least in relative equipoise as to whether the Veteran has additional disability that was proximately caused by VA’s failure to exercise the degree of care that would be expected of a reasonable health care provider. As such, resolving reasonable doubt in the Veteran’s favor, the Board finds that entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residual paralysis due to spinal fusion surgery is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel