Citation Nr: 19129656 Decision Date: 04/16/19 Archive Date: 04/16/19 DOCKET NO. 18-06 842 DATE: April 16, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a neck condition following a September 26, 2014 posterior fusion of the cervical spine is denied. FINDING OF FACT The Veteran’s September 26, 2014 posterior fusion of the cervical spine was performed at a private facility. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a neck condition following a September 26, 2014 posterior fusion of the cervical spine are not met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from November 1967 to June 1968. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a neck condition following a September 2014 posterior fusion of the cervical spine The Veteran asserts that his VA physician at the VA Medical Center at Mountian Home referred him to a private clinician, Dr. D.W., in Johnson City, TN, and that he suffered numbness, pain, memory loss, and an inability to perform independent activities of daily living as a result of negligent treatment that he received from the private physician in performing his September 26, 2014 surgery. See August 2016 Veteran’s statement. The Veteran claims that he is entitled to compensation under 38 U.S.C. § 1151 related to this treatment. Under applicable law, when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358. To be awarded compensation under § 1151, a veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. For additional disability to be compensable, it must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Loving v. Nicholson, 19 Vet. App. 96 (2005). The additional disability must have been the result of injury flowing directly from the actual provision of care, treatment, or examination furnished by VA. Id. A VA employee is an individual (i) who is appointed by VA in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105 ; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of the law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. 38 C.F.R. § 3.361. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361. Activities that are not hospital care, medical or surgical treatment or examination by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151 are: (1) hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703 ; (2) nursing home care furnished under 38 U.S.C. § 1720 ; and (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. 38 C.F.R. § 3.361. Here, the Veteran’s September 26, 2014 surgery was performed at a private facility by a private physician. The physician was not under contract by VA. Thus, as no surgical treatment by a VA employee or in a VA facility is demonstrated, the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for any disability resulting from the posterior fusion of the cervical spine. The Veteran has not asserted that his injuries were caused by hospital care, medical or surgical treatment, or examinations by a VA employee or in a VA facility under the regulatory definition. The Board acknowledges the January 2019 letter submitted on behalf of the Veteran from his ex-wife, D.I. She recounted the extensive recovery period and suffering the Veteran experienced after the September 2014 surgery. While the Board is sympathetic to the plight of the Veteran following his cervical fusion, the regulations do not support granting compensation under 38 U.S.C. § 1151. Where, as here, the law and not the evidence is dispositive, the appeal must be denied for failure to state a claim upon which relief may be granted. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, the Veteran’s claim for entitlement to compensation under 38 U.S.C § 1151 is denied. BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura C. Owens, Associate Counsel