Citation Nr: 18158240 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-31 978 DATE: December 14, 2018 REMANDED Entitlement to compensation under 38 U.S.C. 1151 for residuals of spinal surgery, to include cervical spine surgery, is remanded. REASONS FOR REMAND The Veteran had active duty service from February 1970 to January 1973. In Clemons v Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board finds that the back disability on appeal encompasses the cervical spine. In a November 1999 rating decision, the RO denied entitlement to compensation under 38 U.S.C. § 1151 for cervical stenosis with myelopathy, postoperative. In November 1999, the Veteran was informed of the rating decision and his appellate rights. In January 2000, the Veteran submitted additional evidence regarding the severity of his symptoms since his operation, which was new and material with respect to the claim for compensation under 38 U.S.C. § 1151 for a cervical spine disability. As the evidence was received within one year of notice of the November 1999 rating decision, the rating decision did not become final. 38 C.F.R. § 3.156 (b). Entitlement to compensation under 38 U.S.C. 1151 for residuals of back surgery, to include cervical spine surgery is remanded. The Veteran contends that he has a disability of the cervical spine, which was caused by a cervical spine surgery performed at the Department of Veterans Affairs (VA) Medical Center in Decatur, Georgia in April 1998. The operation report and consent form for the procedure are of record. Records reflect that the Veteran underwent C5 and C6 anterior cervical corpectomies with anterior interbody fusion from C4 to C7 using an allograft fibula strut and an anterior cervical plate. The Veteran was discharged five days after the procedure. A June 1998 VA treatment record reflects that the Veteran reported that he felt worse after the surgery. He reported that his neck pain was better, but his nerves were worse. A July 1998 VA treatment record indicates that the Veteran reported that he still had numbness in his hands. A November 1999 VA treatment record reflects that the Veteran complained of pain on the right side of his body, which was burning in nature and felt like a vice. The Veteran reported that he was on tramadol and Percocet for pain. A VA treatment record dated in May 2000 reflects that the Veteran complained of right sided pain in multiple joints, including the neck, hip, ribs, ankle and big toe. An assessment of chronic pain was noted. A chiropractic record dated in June 2013 shows chief complaints of right upper extremity pain and right lower extremity pain. The Veteran reported a history of neck surgery in 1998 with residual right shoulder girdle pain and neck pain. An x-ray indicated that there was a cervical plate that appeared to only anchor 2 screws in the vertebral body of C6 and into the disc space of C6-7. The report noted that the superior end of the plate did not have any screws through the plate holes. In a February 2012 statement, the Veteran indicated that he was not supposed to have a plate put in his chest. He asserted that an x-ray technician told him the day after his surgery that a plate was not supposed to be in his body. He stated that a surgeon said that a plate was not placed, but the x-ray technician showed him that it was in the neck and chest area. The Veteran had not been afforded a VA examination and opinion. The claim is being remanded for a VA examination to ascertain whether the Veteran has additional disability as a result of his cervical spine surgery performed at a VA Medical Center in April 1998. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his cervical spine. The examination should be conducted by an appropriate physician. The examiner should address the following questions: a) Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the April 1998 surgery of the cervical spine caused additional disability. • The examiner should consider the November 1999 VA treatment records, which reflect that the Veteran complained of burning pain after his surgery, which felt like a vice, and reported that he was taking Tramadol and Percocet. • The examiner should consider the June 2013 chiropractic report, which noted a history of neck surgery in 1998 with residual right shoulder girdle pain and neck pain. b) If the examiner determines that the April 1998 surgery caused additional disability, the examiner should offer an opinion as to whether the proximate cause of any such disability was the result of either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment or (ii) an event not reasonably foreseeable. • The examiner should address the June 2013 x-ray report, which indicated that there was a cervical plate that appeared to only anchor 2 screws in the vertebral body of C6 and into the disc space of C6-7, and the superior end of the plate had no screws. (Continued on the next page)   c) The examiner should address whether any additional disability of the cervical spine that is identified by the examiner is the type of risk that would have been disclosed in connection with informed consent procedures. • The examiner should address the Veteran’s contentions that (1) he was not informed that a plate would be placed in his cervical spine and (2) a plate was not supposed to be placed in his cervical spine. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Catherine Cykowski