Citation Nr: 20060337 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 07-06 372A DATE: September 14, 2020 REMANDED Entitlement to compensation for residuals of a neurological procedure, including progressive quadriparesis, deep venous thrombosis, autonomic dysreflexia, and neurogenic bowel or bladder, claimed as the result of reckless or negligent VA surgical treatment, pursuant to 38 U.S.C. § 1151, is remanded. REASONS FOR REMAND The Veteran served in the Army from August 1964 to August 1966 and in the Air Force from August 1966 to April 1969 and from January 1971 to April 1974. This case has a long procedural history, first coming to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in June 2006. That decision denied the Veteran’s request for compensation pursuant to 38 U.S.C. § 1151 for additional neurological disabilities which, he contends, were the result of a surgical procedure performed by VA medical personnel in February 2005. The Board has denied this claim in September 2011, April 2014, and, most recently, in December 2016. On each of these occasions, the Veteran appealed the denial of his claim to the United States Court of Appeals for Veterans Claims (Court). The Court vacated each of these decisions – the first two on the joint motion of both parties, in July 2012 and March 2015, respectively. The December 2016 decision was vacated by the Court’s memorandum decision in August 2018. When the Court granted the joint motions and when it issued the decision, it vacated the denial of the claim for compensation under 38 U.S.C. § 1151 and returned this appeal to the Board for further proceedings. In November 2008 the Veteran testified at a hearing before a Veterans Law Judge who is no longer a member of the Board. The Veteran testified at a second hearing before the undersigned in July 2016. Transcripts of the hearings are of record. In October 2016, the Veteran waived his right to testify at a third hearing before yet another judge. Attempting to remedy the problems described in the Court’s August 2018 decision, the Board remanded this appeal for new medical opinions in April 2019 and, most recently, in September 2019. Compensation for Residuals of Spine Surgery Compensation will be awarded, in the same manner as if such additional disability were service-connected, if additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA personnel providing hospital care, medical or surgical treatment to the Veteran. See 38 U.S.C. § 1151. There is little doubt that the Veteran did incur additional disability as a result of the spinal operation performed at a VA medical center on February 9, 2005. In September 2009, a VA physician who participated in the Veteran’s treatment wrote that, “his condition worsened as a result [of the surgery], and the severe paralysis has persisted and should be considered permanent. In addition to the paralysis, he has other consequences of his spinal cord damage, including severe muscle spasticity, joint contractures, neurogenic bladder and neurogenic bowel, and intractable pain.” To establish that the proximate cause of a disability was the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show that either: (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without his informed consent. See 38 C.F.R. § 3.361(d)(1)(i), (ii) Instead of alleging specific mistakes during the surgery itself, the Veteran has instead attempted to demonstrate that the unfortunate complications of his spine surgery were either the result of “an event not reasonably foreseeable” for the purposes of 38 U.S.C. § 1151(a)(1)(B) and that VA medical personnel failed to obtain his informed consent before proceeding with the surgery. During the most recent hearing, the Veteran testified that, before the surgery, he was never informed that there was a risk of paralysis or damage to the nerves or nerve roots. In McNair v. Shinseki, 25 Vet. App. 98 (2011), the Court found that, “the failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.” Id. at 107. Relying on McNair and certain medical opinions concerning the approximate number of patients who experience improvements or complications following similar surgeries, the Board’s December 2016 decision found that a reasonable person in similar circumstances – i.e., a person with cervical stenosis with severe myelopathy – would have proceeded with the February 2005 treatment. Consistent with this finding, the Board rejected the claim that the surgery took place without his informed consent. In its August 2018 decision, the Court wrote that, “Although the Board noted the severity and progressive nature of the appellant’s condition, it did not adequately discuss the circumstances of the appellant’s condition prior to his February 9, 2005, procedure, including the favorable evidence consisting of the appellant’s testimony that he could ambulate before surgery . . . and the February 1, 2005, VA record, made mere days before the appellant’s February 9, 2005, procedure, noting that he had an unstable gait and was at risk of falling. . . Because the appellant stated that he was not advised of the risk of paralysis. . . the Board must discuss the favorable evidence indicating that he could still ambulate prior to the procedure.” The Court criticized the Board for failing to “adequately discuss the consequences of foregoing the procedure versus electing to undergo the procedure when finding that a reasonable person with similar circumstances would have proceeded with the [surgery].” (emphasis in original). In April 2019, the first time the Board considering this case in light of quoted statements, the Board observed that, while the record included several medical opinions describing the potential risks of surgery, there were no opinions specifically comparing those risks to the risks of foregoing treatment. Thus, the Board remanded the case, instructing the AOJ to obtain a medical opinion in which the author was asked to “address the Veteran’s prognosis if he had not undergone the February 2005 neck surgery.” The AOJ obtained an opinion on this issue in June 2019 but, as the Board explained in its most recent remand, the June 2019 opinion was phrased in terms too general to help decide the question of whether a reasonable person in similar circumstances would have proceeded with the 2005 surgery. The Board requested a new opinion, in which the examiner was asked “to identify and address which factors specific to the Veteran's facts and set of circumstances impacted the decision to provide surgery, rather than a more conservative course of treatment, and whether, based on those identified factors, it was reasonable to perform the surgery, when compared with forgoing the surgery.” A VA neurologist, who previously examined the Veteran in 2013, conducted a review of the records and provided the requested opinion in in June 2020. According to the examiner, the “prognosis would have been poor if he had not undergone surgery in February 2005.” The examiner explained that, before the surgery, there was evidence of progressive neurological deficits in all four extremities. These were described in a VA treatment note, dated January 26, 2005, which is quoted in the June 2020 report. The examiner described these findings as “a definite indication for surgery when combined with the MRI findings (see up to date article below).” According to the examiner, “If I was in private practice I would have considered this an urgent situation and referred him to neurosurgery the day I saw him. There was evidence of spinal cord compression which would likely [have] led to the same clinical picture when I examined him on 12/23/13 (if he did not have surgery). I believe a more conservative treatment (i.e. no surgey [sic]) would have been below the normal standard of care. As unfortunate as it is that his clinical picture deteriorated after surgery, it was [the] correct decision to operate based on his clinical picture of progressive quadriparesis, inability to ambulate and his sensory disturbance.” Although there is helpful information in this report, there are also, unfortunately, two significant problems. The report’s conclusion, quoted immediately above, refers to the Veteran’s “inability to ambulate. . .” Although the January 26, 2005 neurosurgery consultation note does describe the Veteran as “unable to walk”, a subsequent VA nursing note, dated February 1, 2005, described the Veteran as having an unsteady gait. In his hearing testimony, the Veteran said he was able to walk before the surgery. And in its August 2018 decision, the Court insisted that, “the Board must discuss the favorable evidence indicating that [the Veteran] could still ambulate prior to the procedure.” Under these circumstances, it would not be appropriate for the Board to rely on an opinion which depends on the premise that, before the surgery, the Veteran could not walk. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion may be inadequate if it rests on an inaccurate factual premise). The second weakness of the June 2020 opinion is an apparent tension between the examiner’s suggestions that the Veteran’s condition in February 2005 represented an “urgent situation” – so urgent apparently that conservative treatment would have “been below the normal standard of care” – and the article from “Up To Date” quoted at length following the examiner’s conclusion. Instead of clearly suggesting that surgical treatment was required in the Veteran’s situation, the article begins with the statement that, “There is no consensus regarding the indications and timing for surgical treatment of cervical spondylotic myelopathy.” The article then describes the different kinds of spinal surgeries used to treat this diagnosis and potential complications, including nerve or nerve root injury. Next, article discusses surveys comparing patients who received surgery to patients who opted for conservative treatment. But these studies were apparently limited to “two small, randomized trials in patients with mild disease and one nonrandomized prospective cohort in patients with a broader range of disease severity.” Based on the examiner’s statement that the Veteran’s symptoms represented an “urgent situation” it seems doubtful that the studies of patients “with mild disease” would be relevant to his situation. And the article’s explanation of the nonrandomized surgery is confusing: “study in which 43 patients with cervical spondylotic myelopathy found that the 20 patients who had surgery had improved functional status, pain, and neurologic symptoms at one year compared with those who were treated conservatively. . . Surgically treated patients had worse baseline deficits.” Does this mean every single one of the 20 patients who had surgery had better function, less pain, and more mild neurologic symptoms than every one of the, presumably 23, patients who opted for conservative treatment? Or did they merely have improved outcomes on average? The article’s final paragraphs, discussing acute myelopathy, seem most relevant to the examiner’s suggestion of urgency. “Among a cohort of 199 patients with asymptomatic cervical spondylosis, 14 traumatic episodes occurred over a 44-month median follow-up period with no association with the development of symptomatic myelopathy. This is a neurologic emergency, requiring immediate neuroimaging for anatomic confirmation and prompt neurological or orthopedic consultation. . .” The Board is confused about the significance of this information to the Veteran’s case. Based on the sequences of the words in the article, the statement – “This is a neurological emergency” – appears to refer to the study of incidents of unspecified traumatic spinal injury in a group of patients with previously asymptomatic cervical spondylosis. According to the January 26, 2005 VA treatment note, the Veteran was not previously asymptomatic. He had a five-year history of quadriparesis with pain in the right leg. Moreover, there is no evidence of sudden traumatic spinal injury or other recent traumatic episode. Instead, the note describes the Veteran’s symptoms as “gradually worsening” over the previous five years. Although the Board sincerely regrets the need for further delay, it is necessary to remand this case again to obtain a clarifying opinion from the examiner. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Send the claims file to the VA physician who examined the Veteran in December 2013 and, most recently, provided a written opinion in June 2020 concerning the Veteran’s probable prognosis with respect to surgical or conservative treatment prior to his February 2005 spinal surgery. If the examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the requested opinion cannot be provided without a new examination, a new examination should be arranged. The examiner should review the claims file and then provide an addendum report responding to these questions: (a) In the June 2020 report the examiner wrote that the Veteran would likely have had a poor prognosis if he had decided to forego the February 2005 surgery. According to the report, “it was [the] correct decision to operate based on his clinical picture of progressive quadriparesis, inability to ambulate and his sensory disturbance.” The examiner is advised that, although the January 26, 2005 VA treatment note, quoted in his report, described the veteran as “unable to walk” at that time, a subsequent nursing note, dated February 1, 2005, describes him as having “an unsteady gait” suggesting that he could walk prior to the surgery, albeit unsteadily. Moreover, the veteran has testified that he could walk before his surgery. Based on this information, the examiner is invited to revise, update, or further explain his June 2020 opinion. The examiner should also answer the question: assuming that the Veteran could walk prior to the February 9, 2005 surgery, would that change his previous opinion concerning the relative advantages of surgery and conservative treatment? Why or why not? (b) In his June 2020 report, the examiner described the Veteran’s medical condition prior to the surgery as an “urgent situation” and even suggested that a more conservative course of treatment would “have been below the normal standard of care” The examiner is asked to clarify the apparent discrepancy between this assessment of the standard of care and the first line of the “Up To Date” article he quoted in his opinion: “There is no consensus regarding the indications and timing for surgical treatment of cervical spondylotic myelopathy.” The examiner should also please clarify the apparent confusion concerning his citation to that article to support his conclusion that, prior to the February 2005 surgery, the Veteran’s medical condition was an “urgent situation” when the reference to “neurological emergency” in the article appears to refer to the study of incidents of unspecified traumatic spinal injury or “traumatic episodes” in a group of patients with previously asymptomatic cervical spondylosis. The examiner is advised that, according to the January 26, 2005 VA treatment note, quoted in his June 2020 report, the veteran was not previously asymptomatic. Indeed, he had a five-year history of quadriparesis with pain in the right leg. The examiner is further advised that his report does not refer to any evidence of sudden traumatic spinal injury or sudden traumatic episode. Instead, the January 26, 2005 note describes the Veteran’s symptoms as “gradually worsening” over the previous five years. Based on this information, the examiner is invited to revise, update, or further explain his June 2020 opinion. The examiner should also answer the question: assuming that the Veteran’s surgery was not an emergency, would that change his previous opinion concerning the relative advantages of surgery and conservative treatment? Why or why not? (c) Finally, the examiner is asked to please clarify a discrepancy concerning the likelihood of improvement in similar patients who undergo similar surgeries. Unlike the concerns noted in items (a) and (b), this discrepancy does not come from his June 2020 report. But the discrepancy is relevant to the examiner’s assignment of comparing the relative prognosis of surgery with the likely prognosis of foregoing surgery. According to an August 2009 medical opinion, “in patients undergoing surgery for cervical myelopathy, 50% of the patients have no change with the surgery; of the remaining 50% of the patients half (25%) may have some improvement and half (25%) can expect to be worse with surgery.” A separate medical opinion, provided in April 2013 was more optimistic about the probability of improvement: “Overall 50 to 80 percent of patients are reported to be improved after surgery, while 5 to 30 percent are worse or subsequently deteriorate.” Which of these estimates concerning the probability of improvement with surgery, if any, most closely described the Veteran’s chances of improvement with surgery prior to February 9, 2005? The examiner is asked to explain the reasons for his answer. If the examiner believes that neither estimate is correct and believes a different estimate would be better, he or she should describe that estimate and explain why, in his or her opinion, his or her own estimate more closely describes the relative probabilities of improvement or deterioration than the estimates in the August 2009 and April 2013 medical opinions. The AOJ should closely review the report requested above to ensure that it complies with the directives of this remand. If any report is deficient in any manner, it should be returned to the reviewing personnel. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.