Citation Nr: 21065755 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-06 842 DATE: October 27, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a cervical spine disability contended to be due to a September 26, 2014, posterior fusion of the cervical spine is denied. FINDING OF FACT Following the September 26, 2014, posterior fusion of the cervical spine, the Veteran did not have an additional disability for the purposes of compensation under 38 U.S.C. § 1151. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a cervical spine disability contended to be due to a September 26, 2014, posterior fusion of the cervical spine have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO). By way of background, the Board previously denied this claim in an April 2019 decision finding that the evidence did not establish the Veteran received treatment from a VA employee or at a VA facility, and therefore entitlement to compensation under 38 U.S.C. § 1151 was precluded. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC or "the Court") and in November 2019, the Court granted the parties Joint Motion for Remand (JMR) to vacate the Board's prior denial based on inadequate statement of reasons or bases. The matter returned to the Board for action consistent with the terms of the JMR. In April 2020 and October 2020, the Board remanded the claim to obtain VA opinions. As will be discussed in more detail below, substantial compliance with the October 2020 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the record contains a pending Motion to Advance on the Docket. As the Board was already in the review process, the Motion to Advance on the Docket is deemed moot. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to compensation under 38 U.S.C. § 1151 for a cervical spine disability contended to be due to a September 26, 2014, posterior fusion of the cervical spine is denied. The Veteran contends that VA physician's referral of care to a non-VA facility was the proximate cause of his additional cervical spine disability that occurred after a September 2014 posterior fusion of the cervical spine at a non-VA medical facility. The Board finds compensation under 38 U.S.C. § 1151 is not warranted. Under VA laws and regulations, when a Veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. Because the Veteran in this case filed his claim after that date, he must show some degree of fault, and more specifically, that the proximate cause of any additional disability or death was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1). The implementing regulation is 38 C.F.R. § 3.361, which provides that claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the actual causation requirements of 38 C.F.R. § 3.361(c)(1)-(2), and proximate causation of 38 C.F.R. § 3.361(d)(1) (informed consent) or 38 C.F.R. § 3.361(d)(2) (unforeseen event). To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. To establish actual causation, the evidence must show that the VA hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Id. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused the Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability and that (i) the VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) the VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, inappropriate cases, the Veteran's representative's, informed consent. 38 C.F.R. § 3.361(d). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Id. Turning to the relevant evidence of record, in March 2014, imaging revealed multilevel degenerative disc disease (DDD) most significant at C6-C7 and C7-T1 without acute boney abnormality. See March 2014 VA treatment records. Treatment records reflect the Veteran complained of chronic neck and shoulder pain. See May 2014 VA treatment records. In June 2014, the Veteran sought re-evaluation for chronic neck pain complaining of increasing weakness in his upper extremities making it difficult to drive. See June 2014 VA treatment records. When he was last seen, he endorsed pain primarily in the neck and right shoulder, but he then reported pain in the neck with radiation into both upper extremities. The Veteran endorsed increasing loss of sensation and tingling in both upper extremities even endorsing waking from sleeping to "severe shooting electric-like pain" down the center of the back and into his leg. He conveyed seeking emergency treatment due to the severity of his pain. Upon examination, the provider noted that the Veteran was experiencing "progressive weakness" since examination in February 2014. The provider stated that the Veteran was not a candidate for injections, and that it appeared he was developing some significant compression of the spinal cord with progressive motor loss, Lhermitte's sign, and increasing sensory deficits." The provider recommended a neurosurgery evaluation. In August 2014, the Veteran was referred for non-VA care for a CT scan with sedation at Johnson City Medical Center. See August 2014 VA treatment records. Following the CT scan, the Veteran returned to VA to discuss the results. The study was noted to be suboptimal, and the Veteran remained "myelopathic with increased difficulty walking." See September 2014 VA treatment records. The Veteran was again referred for non-VA care to complete a neurosurgery evaluation. See September 2014 VA treatment records. In September 2014, the Veteran presented at a non-VA facility as a new patient complaining of numbness, burning, and sensitivity in the bilateral upper extremities as well as pain in the neck and into the shoulders and difficulty with gait. See September 2014 CAPRI. The Veteran reported that for the past seven to eight months, he started noticing increased neck pain and bilateral shoulder pain and then over the past three months, it progressively worsened and become severe with burning, numbness, and sensitivity in both upper extremities. He endorsed progressively worsening gait in the last three to four months stating that he used to be able to ambulate without assistance but now uses a cane and falls. The provider recommended a posterior cervical laminectomy, noting that the risks, benefits, and alternatives were discussed with the patient and he wished to proceed as soon as possible. The provider noted that the expected benefits and non-surgical alternatives to the procedure were addressed and questions were answered. Risks and potential complications were addressed including bleeding, infection, continued or worsened pain, weakness, numbness, decrease in nerve root or spinal cord function, possible paralysis, the need for a blood transfusion, and risk of death. Limits of the procedure were also discussed as well as the possibility of pain persisting post-operatively from changes in the cervical spine, which the operation is unable to address. Medical risks were discussed which included myocardial infarction, pulmonary embolus, pneumonia, death, or cerebrovascular accident from the anesthesia or surgery were also discussed. The Veteran acknowledged understanding and wished to proceed with the surgery. On September 26, 2014, the Veteran underwent a posterior fusion of the cervical spine at a non-VA facility. At the one-year follow-up, the Veteran continued to complain of experiencing neuropathic type symptoms with allodynia in his arms and the inability to do fine motor skills such as buttoning his shirt. See September 2015 CAPRI. He continued to endorse experiencing a significant amount of neck pain and burning in his feet. Electrodiagnostic testing indicated the Veteran had a sensorimotor peripheral neuropathy. As part of a 2015 neurological evaluation, the Veteran was noted to have increasing pain in his neck with associated numbness and tingling and weakness in his arms with trouble walking over the years which led to his 2014 surgery. See October 2015 CAPRI. Since surgery, the provider noted the Veteran has had significant numbness in his hands bilaterally and arms, left greater than right, with some associated weakness. He also developed burning and stinging in his bilateral feet and aching. He felt unsteady. The provider noted that the Veteran had cervical spondylosis with myelopathy producing weakness in the extremities and peripheral neuropathy of an unknown cause. The Veteran stated that following the September 2014 procedure, he woke up and was "numb" from head to toe, had memory loss, and could not function independently. See August 2016 Statement in Support. He stated that he could not hold an eating utensil in his hands and required assistance for the bathroom and bathing. The Veteran stated that his ex-wife moved in with him because he could not do anything by himself. He endorsed "unbearable" pain and limited motion in bending or turning the head. He endorsed posture changes. He stated that he is still experiencing problems with numbness and motor skills such as gripping or holding. The Veteran's ex-wife stated that the Veteran was unable to walk or hold a utensil following the 2014 procedure. See April 2019 buddy statement. She conveyed that the Veteran's legs, feet, arms, hands, and neck were numb, and he could barely stand. She stated that he continues to have problems. The Veteran was afforded a VA examination in May 2020 during which the examiner opined that the VA's diagnosis and treatment was appropriate and timely with the accepted appropriate protocols followed, meeting the standard of care in this case. See May 2020 VA examination. The examiner opined it was less likely as not the claimed condition was caused by or became worse as a result of VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider, and / or failure on the part of VA to timely diagnose and / or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner opined that VA care nor referral for such did not cause the condition. The examiner reasoned that the Veteran's medical history showed no delay or additional burden due to the gradual progressions of multiples disease with different onsets including B12 deficiency that was treated. The Board remanded following this VA examination as the examiner failed to answer whether or not the Veteran had an additional disability due to the September 2014 cervical spine surgery and the examiner failed to provide a rationale in support of the opinions offered regarding peripheral neuropathy and a B12 deficiency. Accordingly, the Veteran was afforded another VA examination in May 2021 during which the examiner noted the Veteran has a diagnosis of cervical strain, degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS), IVDS, and spinal fusion. See May 2021 VA examination. The examiner opined that the Veteran's cervical spine condition started around September 2013 noting that the Veteran stated his shoulders started tingling and grew as time passed with constant nausea. He conveyed that as time passed, it affected his walking and produced neck pain. After the 2014 surgery, the Veteran stated that he has constant, severe, sickening pain throughout his neck which flows into the shoulders, arms, hands, legs, and feet. He stated that he is unable to walk since the surgery and shuffles his feet. He stated that he cannot feel his feet touching the floor. He endorsed feeling like ants are crawling on his arm. He also described pain in the thumb and little finger. The Veteran said that he cannot hold anything, cannot work on cars like he used to, and is unable to slice anything. He stated that prior to surgery, he walked 1-2 miles per day in work boots, but now is "lucky to walk from room to room." He stated that he cannot do anything that requires fine motor skills. He stated that he holds things with two hands, has trouble dressing himself, cannot stand for any length of time, cannot write, and has worsened memory. He stated that he can barely turn his head to the left or right or up and down. The examiner opined based on the evidence of record, the Veteran was diagnosed with DDD and DJD of the cervical spine as confirmed by imaging in November 2013. See May 2021 VA examination. Then he had cervical spine surgery and continued to experience pain that is dull and aching to sharp, stabbing, shooting, and burning with decreased sensation in the fingers, which is indicative of a neurologic condition. The examiner opined that it is a result of spinal nerves being compressed due to continuous degenerative process and deterioration / aggravation of disc disease as it is a common complication for these types of cervical conditions. The examiner noted that the same condition was found and did not show an additional disability. Therefore, it is less likely than not the claimed peripheral neuropathy and B12 deficiency were etiologically related to complications of the surgery and post-operative follow-up care provided and were merely coincidental findings unrelated to any treatment received. The examiner also opined that the Veteran had the same condition and did not have an additional disability. The examiner reasoned that the Veteran's condition is the result of spinal nerves being compressed due to continuous degenerative process and deterioration / aggravation of disc disease, as it is a common complication for the Veteran's type of cervical condition. The examiner opined that it is less likely than not that VA's medical treatment in recommending a cervical spine surgery or in recommending a consultation with a non-VA neurosurgeon resulted in his additional disability. See July 2021 VA examination. The examiner also opined that the Veteran's condition is less likely than not due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination because the Veteran's condition is a result of spinal nerves being compressed due to continuous degenerative process and deterioration / aggravation of disc disease as it is a common complication of the Veteran's cervical condition. See July 2021 VA examination. Finally, the examiner opined that VA's referral was appropriate based on the Veteran's symptoms and does not represent 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. See May 2021 VA examination. The examiner noted that the medical literature notes that cervical spine surgery is not without well established risk which is noted on surgical consent prior to surgery. Regarding B12, the examiner further opined that the Veteran's B12 deficiency as not secondary to his cervical spine fusion surgery. See August 2021 VA examination. The examiner reasoned that B12 deficiency is usually secondary to gastrointestinal malabsorption disorder and there is no data linking the vitamin B12 deficiency to his cervical spine surgery. Based on the above, the Board finds entitlement to compensation under 38 U.S.C. § 1151 is not warranted. The Board finds the May 2021 VA examiner competently explained that the Veteran did not incur an additional disability following the September 2014 surgery. Indeed, the examiner's opinion is corroborated by the evidence of record reflecting symptoms immediately prior to the 2014 surgery and continuing following surgery. The Veteran competently and credibly reported symptom worsening in the years prior to the 2014 procedure. While the symptoms continued following the procedure and the Veteran competently stated his symptoms had worsened, the May 2021 VA examiner opined that said symptoms were the result of spinal nerves being compressed due to continuous degenerative process and deterioration / aggravation of disc disease, as it is a common complication for the Veteran's type of cervical condition rather than an additional disability. The Board finds this opinion to be highly probative. The Board acknowledges the Veteran is competent to convey symptoms and describe worsening. However, to the extent that the Veteran attributes his symptoms to the September 2014 procedure, such a determination involves complex medical findings beyond the Veteran's lay competence. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). Therefore, the Veteran's statements in that regard are of less probative value than the findings of the May 2021 VA examiner discussed above. The Board also acknowledges the Veteran's post-operative finding of a B12 deficiency but finds highly probative the May 2021 VA examiner's opinion that such a finding is incidental and was not related to or caused by the 2014 surgery. The Board previously denied this claim because the Veteran's procedure occurred in a non-VA facility with a non-VA physician. This decision was vacated by the Court as part of the November 2019 Order granting the parties JMR which stated that the Veteran's theory of entitlement is that the VA doctor's recommendation of the procedure proximately caused his current cervical spine disability, which is allowed under Ollis v. Shulkin. The Board notes that treatment or care furnished either (a) under a contract made under 38 U.S.C. § 1703 authorizing VA to contract with a non-VA provider for medical service to veterans when VA is not capable of furnishing the care required or (b) under 38 U.S.C. § 8153 concerning sharing of health-care resources in a facility over which the Secretary does not have direct jurisdiction are not treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151. Consequently, in this case, the Veteran's surgery, which was contracted for with a non-VA provider, is not considered care furnished by VA for the purpose of receiving compensation under 38 U.S.C. § 1151. Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that a claimant may succeed under a referral theory pursuant to section 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (2017). In Ollis, the Federal Circuit addressed the application of section 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151 on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant 38 U.S.C. § 1151(a)(1)(B) as an event not reasonably foreseeable. More specifically, the Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event, 38 U.S.C. § 1151 requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Court further held that 38 U.S.C. § 1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional disability. "As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability." Ollis, 857 F.3d at 1346. Worth noting, in Ollis, VA recommended a specific procedure for the Veteran from a non-VA physician. In this case, which is completely distinguishable from the case in Ollis, the VA physician did not refer the Veteran to a specific procedure. Rather, the VA physician merely referred the Veteran to a non-VA neurosurgeon for a consultation following the Veteran's inability to complete testing at VA. It was the private neurosurgeon who recommended the 2014 surgical procedure and not the VA physician. Nonetheless, several opinions have been obtained and it is abundantly clear that the Veteran does not have an additional disability as a result of the 2014 surgical procedure for the purposes of benefits under 38 U.S.C. § 1151 and the inquiry therefore ends. That is, while the evidence of record acknowledges the Veteran is having neurological manifestations stemming from the continued degeneration of his cervical spine, this is merely coincidental to the fact that he had surgery, not due to the surgery. Whether or not he had surgery, according to the May 2021 VA medical opinion, the degeneration of his cervical spine would have progressed to compress his spinal nerves resulting in the Veteran's current neurological manifestations. Simply put, while the Board is not doubting the Veteran's description of his current manifestations, the most competent and persuasive evidence does not associate these manifestations with the 2014 surgical procedure. (Continued on the next page) Based on careful review of the record, the Board finds that the preponderance of the evidence is against an award of compensation under 38 U.S.C. § 1151. As such, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, Associate 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.