Citation Nr: 21002745 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-31 978 DATE: January 14, 2021 REMANDED Entitlement to Department of Veterans Affairs (VA) compensation under 38 U.S.C. § 1151 for residuals of spinal surgery, to include cervical spine surgery, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy from February 1970 to January 1973. An August 2019 Board decision denied service connection compensation under 38 U.S.C. § 1151 for residuals of spinal surgery, to include cervical spine surgery. The Veteran appealed the Board’s decision as to the 38 U.S.C. § 1151 claim to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Remand (JMR), the Court set aside the Board’s August 2019 decision as to entitlement to compensation under 38 U.S.C. § 1151 for residuals of spinal surgery, to include cervical spine surgery, and remanded the matter for additional development and readjudication. In December 2020, the Board requested clarification regarding the Veteran’s request for a Board hearing pursuant to the July 2020 JMR. The Veteran nor her representative responded to the request for clarification. Accordingly, the Board has found the Veteran’s July 2016 VA Form-9, which indicated the Veteran did not want an optional Board hearing has dictated that the Veteran does not wish to have a Board hearing. According, the Board has proceeded in issuing this remand order. Entitlement to VA compensation under 38 U.S.C. § 1151 for residuals of spinal surgery, to include cervical spine surgery, is remanded. In December 2018, the Board remanded the issue of entitlement to VA compensation under 38 U.S.C. § 1151 for residuals of spinal surgery, to include cervical spine surgery, in order to obtain a VA examination to ascertain whether the Veteran had an additional disability as a result of his cervical spine surgery performed at a VA medical center in April 1998. The examiner was specifically directed to consider the November 1999 VA treatment records, which reflected that the Veteran complained of burning pain after his surgery and reported that he was taking Tramadol and Percocet. The examiner was also directed to consider the June 2013 chiropractic report, which noted a higher of neck surgery in 1998 with residual right shoulder girdle pain and neck pain. In addressing if the April 1998 caused an additional injury, the examiner was further directed to 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. The remand also requested that the examiner address whether any identified additional disability of the cervical spine is the type of risk that would have been disclosed in connection with informed consent procedures. Finally, it was requested that the examiner 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. In May 2019, the Veteran was seen for a VA examination of the cervical spine. After reviewing the Board’s remand directives and the pertinent evidence of record, the examiner determined that there was no additional disability caused by the surgery. The examiner noted that while the outcome was not optimal with continued pain, including burning pain, it was within the expected possible outcomes of the procedure. The examiner noted that it was difficult to explain why the screws were not located in the correct location in 2013, but that this might have been a product of the screws slipping over time, which was an accepted complication. The examiner noted that it was unclear whether the Veteran was informed that a plate would be placed, but that this was standard procedure with anterior cervical corpectomy. Consequently, the examiner determined that there were no grounds to suggest that the condition was caused by, or became worse due to VA treatment, that additional disability resulted from carelessness, negligence, lack of skill, etc., or that additional disability resulted from an event that could have been foreseen by a reasonable healthcare provider, or that there was failure on the part of the VA to treat the claimed disease or allowed it to progress. While the May 2019 VA examiner determined that there was no additional disability caused by the 1998 surgery, the examiner also noted that the Veteran had continued complaints of pain and burning nerve pain. Nonetheless, the examiner determined that continued pain, including burning pain, was within the expected possible outcomes of the procedure. With respect to the screws slipping, as noted in 2013, the examiner found that it was unclear why this happened but that it was an accepted complication over time. The examiner also determined that the placement of the plate was a standard procedure. The August 2019 decision found it as likely as not that the Veteran was informed of the risks of the plate and that he understood the risk of the procedure. Even if he was not informed of these risks, this constitutes a minor, immaterial deviation under VA regulation, as a reasonable person would have consented to the plate placement even with knowledge of the foreseeable risks. The August 2019 decision based its decision in part on the May 2019 VA examiner’s opinion that placement of a plate was standard procedure with the type of surgery performed. In granting the June 2020 JMR, the Court vacated and remanded the Board’s denial of entitlement to VA compensation under 38U.S.C. §1151 for residuals of spinal surgery, to include cervical spine surgery, based on the determination that the Board had not fulfilled its duty to assist (and consequently did not substantially comply with the remand directives of record), because the May 2019 VA examiner did not substantially address the issues as specified in the December 2018 Board remand. Specifically, the parties had agreed that the May 2019 VA examination was inadequate for failing to address the precise inquiry as to whether any risks of additional disabilities would have been disclosed prior to and as a result of placing a plate in the cervical spine. Further, the parties determined that the May 2019 VA examiner’s report does not account for the April 1998 surgery note in which the surgeon stated that “the risks and benefits of the surgery were discussed in detail with this patient. It should be noted that the patient had many questions, and all of these were answered in detail.” The Court noted that the listed risks did not include placement of a plate or problems caused by said placement. Second, the parties agreed in the JMR that the Board erred when it failed to address the Veteran’s arguments. Accordingly on the basis of the JMR, a remand is necessary to obtain an new medical opinion that complies with pervious remand instructions. The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to a VA physician, qualified to provide the information requested below, for preparation of an opinion. Whether an additional in person examination is required is left to the examiner’s discretion. 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 must provide written consideration of 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. (c.) The examiner must 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. In rendering the requested opinion, the examiner should address the April 1998 surgery note in which the surgeon stated that “the risks and benefits of the surgery were discussed in detail with this patient. It should be noted that the patient had many questions, and all of these were answered in detail.” A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.