Citation Nr: 21065925 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-11 043 DATE: October 27, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for lumbar spine damage is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for loss of bowel control is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for loss of bladder control is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for paraplegia of the bilateral lower extremities is remanded. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1968 to October 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded them for further development in May 2020. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2019. A transcript of the hearing is of record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for lumbar spine damage is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for loss of bowel control is remanded. 3. Entitlement to compensation under 38 U.S.C. § 1151 for loss of bladder control is remanded. 4. Entitlement to compensation under 38 U.S.C. § 1151 for paraplegia of the bilateral lower extremities is remanded. The Veteran claims entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the lumbar spine and associated paraplegia of the lower extremities and loss of bowel and bladder control due to VA surgeries on the thoracic and lumbar spine performed on February 3, 2015 at a VA medical facility. The Board refers to its May 2020 remand for a full discussion of the pertinent medical history. The Board regrets the delay in rendering a decision on this claim, but finds that another remand is warranted for further development, for the reasons that follow. A VA medical opinion was obtained in December 2020 pursuant to the Board's prior remand. The Board finds it is not sufficient to make an informed decision, and does not comply with its remand directives. More specifically, the Board's May 2020 remand instructs that the examiner was to "acknowledge and consider" certain items of evidence. These included the fact that the February 3, 2015 surgery was complicated by a dural tear, which was repaired. These also included an April 2015 Institutional Disclosure reflecting that the VA hospital's Chief of Staff, Chief of Surgery, and other hospital officials acknowledged that there was an adverse outcome from the February 3, 2015 surgery, and in that regard, stated: "Inserting the titanium prosthetic device [during the February 3, 2015 procedure] was problematic. It went in easily on one side and was more difficult on the other [sic]. There was damage to the thecal sac which leads to the limbs. This lead to a bad outcome." In the December 2020 opinion, the examiner first noted that there is "extensive [and] conclusive documentation" that the Veteran's condition worsened as a result of the February 3, 2015 surgery. However, there was "not sufficient evidence in the file" to determine if this was the result of carelessness, neglect, lack of skill, or other fault on the part of VA personnel without resorting to speculation, "particularly without the benefit of the actual images from his postoperative studies." The examiner noted that the imaging study reports following the surgery did not show an obvious cause or injury to the spine, and that reexamination during the second surgery performed on February 5, 2015 also did not show an obvious cause or injury to the spine. The examiner also noted that the Veteran signed an informed consent prior to the surgery which lists numerous significant potential complications of the surgery, including paralysis and loss of bladder and bowel function. The December 2020 opinion does not address the dural tear that occurred during the surgery (as documented in the operation report), or the April 2015 Institutional Disclosure memorandum reflecting the findings by the Chief of Staff and Chief of Surgery that inserting the titanium prosthetic device was "problematic" and caused damage to the thecal sac "which leads to the limbs." In the examiner's summary of the evidence, the examiner merely stated that the Chief of Staff noted the adverse outcome and apologized to the Veteran, but did not "indicate fault in the event." However, the examiner did not address the substance of that document, which not only officially acknowledges the adverse outcome, but also apparently reflects a finding as to a specific cause, namely the damage to the thecal sac from inserting the prosthetic device. That omission, and the examiner's not otherwise accounting for this pertinent evidence in the opinion, renders the opinion both insufficient and noncompliant with the Board's remand directives. The examiner also did not acknowledge or consider the dural tear documented in the operation report, as instructed by the Board. Further, and significantly, the examiner noted that the actual images (as opposed to the reports) from the post-operative imaging studies were not available for review, and would be necessary to render a non-speculative opinion. The VA treatment records reflect that a CT scan and MRI of the Veteran's spine were performed on February 4, 2015. Thus, the images from those studies presumably would be available in the Veteran's treatment records, although they might need to be accessed separately (such as through the Vista Imaging System). On remand, a new VA medical opinion must be obtained, either from the same examiner, or a different examiner who is an orthopedic or neurosurgeon. The actual images from the CT scan and MRI of the Veteran's thoracic and lumbar spine performed on February 4, 2015 and February 6, 2015 must be made available to the examiner for review. In the opinion itself (not just the evidence summary), the examiner must explicitly address the dural tear that occurred during the surgery, and the findings in the April 2015 Institutional Disclosure memorandum that insertion of a titanium prosthetic device was "problematic" and caused "damage to the thecal sac which leads to the limbs," resulting in a "bad outcome." In addition, further efforts must be made to obtain any available records and evidence associated with a claim, if any, brought by the Veteran against VA under the Federal Tort Claims Act (FTCA) with respect to the February 2015 surgery. In this regard, at the September 2019 hearing, when asked if he had filed such a claim, the Veteran and his spouse seemed unsure. They indicated he had filed a claim against a private facility with whom the surgeons who performed the surgery were affiliated. Records of court documents with respect to that claim have since been added to the file. It remains unclear whether he has also brought a claim against VA under the FTCA. The only effort to obtain any records associated with such a claim was a July 2020 letter to the Veteran. The Board believes VA's Office of General Counsel might possess such records, or be able to advise where they might be obtained, if any such exist. 5. Entitlement to special monthly compensation based on the need for aid and attendance or housebound status is remanded. The claim for SMC is remanded as inextricably intertwined with the section 1151 claims. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two claims are inextricably intertwined when a decision on one issue would have a significant impact on the resolution of the second issue). The matters are REMANDED for the following action: 1. Contact VA's Office of General Counsel, Torts Law Group, and ask it to provide any available records and evidence associated with a claim, if any, brought by the Veteran against VA under the Federal Torts Claims Act with regard to the February 3, 2015 surgery. 2. Obtain a new VA medical opinion from either the examiner who provided the December 2020 opinion or a different orthopedic surgeon or neurosurgeon. The entire claims file must be made available to the examiner for review. In addition, the actual images (not just the reports) from the CT scan MRI performed on February 4, 2015 and February 6, 2015 must be made available to the examiner for review. These might be accessible through the Vista Imaging System. The examiner is asked to provide opinions on the following issues: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's paraplegia of the lower extremities, loss of bladder control, loss of bowel control, and/or any additional lumbar spine disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing the February 3, 2015 surgery. In this regard, the examiner must discuss whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (b.) Whether it is at least as likely as not that the Veteran's paraplegia of the lower extremities, loss of bladder control, loss of bowel control, and/or any additional lumbar spine disability was proximately caused by an event not reasonably foreseeable with regard to the February 3, 2015 surgery. The examiner is advised that this is determined based on what a reasonable health care provider would have foreseen. 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 opinion itself (not just the evidence summary), the examiner must explicitly address the dural tear that occurred during the surgery, and the findings in the April 2015 Institutional Disclosure memorandum by the hospital Chief of Staff and Chief of Surgery that insertion of a titanium prosthetic device was "problematic" and caused "damage to the thecal sac which leads to the limbs," resulting in a "bad outcome." The examiner is advised that to the extent complications of the February 2015 surgery may have been known risks of that procedureas listed in the informed consent signed by the Veteran prior to the surgerythat by itself is not sufficient explanation in support of any conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.