Citation Nr: 19130970 Decision Date: 04/19/19 Archive Date: 04/19/19 DOCKET NO. 15-46 095 DATE: April 19, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for status post cervical spinal fusion (claimed as neck injury) is denied. FINDING OF FACT The appellant did not develop additional cervical disability, to include her status post cervical spinal fusion, due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for status post cervical spinal fusion (claimed as neck injury) have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served honorably on active duty in the United States Navy from April 1986 to May 1995. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to compensation for a cervical spine disability under 38 U.S.C. § 1151. The appellant appeared before the undersigned Veteran’s Law Judge at a videoconference hearing on October 23, 2018. A transcript of that hearing has been added to the record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for status post cervical spinal fusion (claimed as neck injury) is denied. The appellant contends that she is entitled compensation due to VA’s failure to provide proper care for a cervical spine disability prior to a privately performed cervical spinal fusion. After a review of the evidence of record, the Board concludes that compensation is not warranted in this case. 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). It is difficult to determine what exactly is the basis of this claim, as the appellant has stated that her disability is better than it had been prior to her surgery and that symptoms related to her cervical spine are reduced since this privately performed procedure. At her hearing, the appellant stated that she believed that VA failed to provide adequate care for her disability prior to her surgery, although it does not appear that she contends that VA’s lack of care caused additional disability or the need for her surgery. The clinical evidence of record reflects that on November 27, 2013, the appellant was admitted through the emergency room to a private hospital with severe arm pain and weakness. An MRI revealed compression of the discs in the cervical spine which was treated with surgery on November 28, 2013. Prior to this procedure, the appellant had reported symptoms and gone through diagnostic testing through the VA health system for reports of neck pain and upper extremity weakness. An August 2008 CT scan of the appellant’s cervical spine was done after a fall, with the results showing a normal cervical spine. In December 2009, an MRI of the appellant’s cervical spine revealed mild narrowing at C2-C3, mild diffuse disc bulging at C3-C4, disc bulging at C4-C6, and disc narrowing at C6-C7. In January 2010 she reported to the pain clinic with cervical pain and pain in the left shoulder and arm with intermittent tingling which she stated was improving with treatment from a private chiropractor. In November 2010 and August 2013, the appellant underwent EMG studies of the upper extremities. The results of the November 2010 examination were considered normal, and the results of the August 2013 examination were considered mildly abnormal, with no evidence of denervation and reinnervation. In December 2008, January 2009, December 2010, May 2012, and January 2013, the appellant underwent radiofrequency treatments of the cervical spine for neck pain and a history of cervical spondylosis. In July 2013, the appellant reported intermittent tingling and numbness with the left upper extremity. No myelopathy symptoms were noted at that time. In September 2013, the appellant underwent a neurology consult. An EMG test showed mild bilateral carpal tunnel syndrome, but there was no evidence to suggest cervical radiculopathy. In October 2013, the appellant reported for a neurology appointment due to reports of bilateral arm weakness and numbness. A neurological examination was unremarkable except for inconsistent sensory change which the examiner attributed to the appellant’s mental health disability. On October 15, 2013, the appellant underwent an MRI at a private treatment provider, after receiving a prescription from her VA primary care doctor. The MRI revealed issues from C3-C7 in the cervical spine. The appellant also sought private treatment on November 19, 2013, at which time she still reported bilateral hand and lower arm numbness and tingling. While she was recorded as not agreeing with the VA’s assessment that her pain was psychosomatic, her private treating doctor seems to have agreed with VA’s initial assessment. The appellant’s claim was reviewed by a VA examiner in November 2014 and again in April 2015. After a review of all the medical evidence of record, the examiner found it to be less likely as not that VA hospital treatment was careless or negligent, or that lack of proper skill, error in judgment or similar instance of fault, treatment or lack of treatment proximately caused the additional disability claimed by the appellant. First the examiner noted that the appellant had a significant history for this disability going back many years. The examiner stated that it was “certainly very foreseeable” that the appellant’s condition could worsen by natural progression, which the examiner found was demonstrated by the above discussed medical evidence. The examiner found that she was properly referred for an MRI in October 2013 after nerve conduction studies did not reveal a cervically related cause for her upper extremity sensation symptoms. The examiner found no indication that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In the addendum April 2015 opinion, the examiner again stressed that any residual disability was not caused by a delay in treatment. The examiner maintained that the need for a spinal fusion was not caused by VA not properly diagnosing a disability quick enough, but was necessary due to the natural progression of the disability. Further, the examiner found that any residual disability would have been caused by the cervical spinal fusion the appellant underwent with a private treatment provider, which corrected the disability the appellant was dealing with prior to the surgery. The examiner opined that any current symptoms are residually related to a surgery that was necessary due to degenerative changes in the spine, that developed through a natural progression. Considering this opinion, the Board finds that the preponderance of the evidence is against the appellant’s assertion that she has additional disability due to VA’s failure to treat her disability sooner. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the proximate cause of the appellant’s current residuals from a cervical spinal fusion is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The condition involves a pathological process that is not readily observable to a layperson. There is no evidence of record indicating the appellant has the necessary training, knowledge, or experience which would qualify her to provide a competent opinion on this issue. The Board finds that due to the non-observable nature of the pathology, the issue of whether the appellant has additional disability as a result of VA’s failure to conduct a spinal fusion surgery sooner is a medical question requiring medical training, expertise, and experience. Therefore, the Board finds that the VA medical opinion provided in November 2014 and April 2015 outweigh the appellant’s lay opinion. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As such, the claim for entitlement to compensation under 38 U.S.C. § 1151 is denied. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel