Citation Nr: 21068088 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-35 271A DATE: November 9, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability of the cervical spine resulting from delays in providing Department of Veterans Affairs (VA) medical treatment is denied. REMANDED The following issues are remanded for further development: (1) entitlement to compensation under 38 U.S.C. § 1151 for a hemangioma of the spine; (2) entitlement to service connection for a cervical spine disability, to include as secondary to degenerative disc disease of the lumbar spine; (3) entitlement to service connection for a hemangioma of the spine, to include as secondary to degenerative disc disease of the lumbar spine; and (4) entitlement to a temporary total rating based on convalescence following cervical spine surgery. FINDING OF FACT The competent evidence of record does not demonstrate that the Veteran underwent a surgical procedure on May 8, 2012 for degenerative disc disease, C5-6, C6-7 with cervical stenosis and left-sided cervical myeloradiculopathy as a result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing care. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for an additional disability of the cervical spine are not met. 38 U.S.C. §§ 1151, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1976 to January 1982 and from April 1983 to July 1990. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of a VA Regional Office (RO). Jurisdiction of the Veteran's claims file presently resides with the Atlanta, Georgia RO. In November 2018, the Board issued a decision denying: service connection for a left shoulder disability; a rating greater than 40 percent for degenerative disc disease of the lumbar spine; a rating greater than 50 percent for total hysterectomy and bilateral salpingo-oophorectomy; a rating greater than 50 percent for migraine headaches; and effective dates prior to June 19, 2012 for the increased 50 percent rating for migraine headaches, the award of service connection for total hysterectomy and bilateral salpingo-oophorectomy, the award of service connection for osteopenia of the right and left hips, and the award of service connection for degenerative disc disease of the lumbar spine. The Board then remanded the following issues for additional development: entitlement to service connection for a cervical spine disability and a hemangioma of the spine; entitlement to compensation under 38 U.S.C. § 1151 for a cervical spine disability and a hemangioma of the spine; and entitlement to a temporary total rating based on convalescence following cervical spine surgery. The case has returned to the Board for appellate review. Compensation under 38 U.S.C. § 1151 Regarding the Cervical Spine As indicated above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for an additional disability of the cervical spine. As such, the Veteran's claim is denied. In support of this determination, the Board first notes that, under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the claimant's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the claimant under any law administered by the Secretary, either by a VA employee or in a VA facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in the claimant's additional disability or death. Merely showing that a claimant received care, treatment or examination and that the claimant has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). 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 continuation or natural progress. 38 C.F.R. § 3.361(c)(2). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the claimant's additional disability 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, medical or surgical treatment, or examination without the claimant's or, in appropriate cases, the claimant's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a claimant'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. 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. 38 C.F.R. § 3.361(d)(2). Turning to the substance of the instant appeal, the Veteran has contended that VA was reckless or negligent in its provision of care as it took until May 8, 2012 for her to receive a surgical procedure to address her cervical spine disability, despite her showing significant symptoms for at least 6 years prior. See June 2012 Informal Claim. After reviewing the evidence of record, the Board disagrees and, thusly, denies the Veteran's claim. In support of this decision, the Board finds that May 2012 was not the first occasion upon which VA recommended or proposed surgical treatment to address the Veteran's disability of the cervical spine. Rather, on November 22, 2004, the Veteran reported to a VA pain clinic in Buffalo, New York with a chief complaint of neck pain. The Veteran reported that her pain had its onset about 2 years prior and that the pain had gotten worse since May 2004. The clinician noted that the Veteran had been seen previously by a VA primary care provider and by the affiliated VA neurology department. She was prescribed hydrocodoneas well as Neurontin brieflyand had also received treatment from a private physician who specialized in pain management. The November 22, 2004 VA treatment record indicated that the Veteran had received trigger point injections in the past and the attending provider stated that recent radiology studies revealed disc protrusion in the cervical area with encroachment of the left C5-C7 root. The provider then informed the Veteran that she was probably one of the 25 percent of persons who developed chronic pain from disc herniation. The November 22, 2004 provider then discussed possible surgery for the Veteran's above-described cervical spine diagnosis and noted that the Veteran refused. However, the provider indicated that the Veteran had displayed interest in future disc replacement surgery which she indicated had been performed in Germany and France. The provider informed her that this was not an option currently available at VA. Ultimately, the provider performed an additional 2 trigger point injections and the agreed-upon plan of care was to treat the Veteran's condition with medication and physical therapy. The provider ended the treatment note by explaining the possible need for surgery and indicated that the Veteran "showed no interest." Following this November 22, 2004 appointment, VA providers discussed the option of surgery when addressing the Veteran's cervical spine complaints on April 27, 2005; July 27, 2005; October 27, 2005; February 15, 2006; and May 17, 2006. On all of these occasions, the Veteran indicated that she was not interested in any surgical procedures to address her cervical spine condition. Thereafter, on May 22, 2008, the Veteran was seen by a VA pain management clinic in Buffalo, New York. Again, on this occasion, the Veteran indicated that she did not want surgery to address her cervical spine condition. However, the provider placed a consultation request with the neurology department to address the Veteran's concerns. A July 22, 2008 VA pain management note indicated that the Veteran was seen by the neurology department who, in turn, referred the Veteran to neurosurgery. At the time of the July 22, 2008 appointment, the neurosurgery referral was still pending, and the Veteran stated that she did not want to pursue surgery. Less than 1 month lateron August 4, 2008the Veteran was seen for a VA history and physical appointment. During this appointment, the Veteran stated that the injections she had previously received for her cervical spine symptoms had been partially effective, but were no longer working. The Veteran then told the VA provider that she was awaiting an appointment with the neurosurgery department, but that her appointment was rescheduled twice. The provider provided a diagnosis of cervical spondylosis and encouraged the Veteran to follow-up with the neurology department, continue attending her appointments with the pain clinic, and "call neurosurgery up and get an appointment as soon as possible." About one month later, on September 15, 2008, the Veteran again attended a VA pain management appointment. On this occasion, the Veteran acknowledged that she had been referred to neurosurgery, but stated that she had decided to put off scheduling an appointment until a friend was seen by that department and had their surgery. The September 15, 2008 clinician encouraged the Veteran to schedule her appointment. Around 4 months later, during a January 14, 2009 VA pain management appointment concerning the cervical spine, the Veteran reported that, within the past 2 weeks, her left hand had become numb and weaker. The provider discussed the Veteran's circumstances with a neurology resident who recommended that the Veteran be seen by neurosurgery, as was recommended in the past. Unlike her prior appointments, on this occasion, the Veteran was now interested in a neurosurgery referral. Subsequently, during a May 8, 2009 VA pain management visit, the Veteran indicated that she had been seen by non-VA neurosurgeons who requested that an EMG be performed. The EMG then revealed no signs of cervical radiculopathy, but was positive for carpal tunnel syndrome. The Veteran reported that she had a follow-up appointment scheduled with the non-VA neurosurgeon and that she had experienced a vast improvement in her symptoms. In August 2009 and November 2009, the Veteran reported to VA that, since the May 2009 visit, there had been no change in her symptoms. Thereafter, during an August 17, 2010 visit with the pain management visit, the Veteran indicated that she recently had been discharged from a chiropractic clinic with an improvement in the strength of her left arm as well as a decrease in cervical pain. The Veteran then stated that a non-VA neurosurgeon had recommended surgery for her cervical spine, but she was not interested. Then, on May 17, 2011, the Veteran reported for treatment again at a VA pain management clinic. The attending provider indicated that the Veteran's diagnosed condition of cervical spinal canal stenosis was a longstanding problem and that the Veteran was aware of possible consequences if she was involved in an accident or fall that included a neck injury. The Veteran reported that she did not want to have surgery at that time and was waiting for possible future advances in surgery so that any procedure performed would be less invasive. When addressing the Veteran's risks, the provider noted that the Veteran was involved in medieval reenactments and cautioned her to be very careful in her movements. The Veteran was continued with prescription medication to manage her condition. About 8 months later, on January 31, 2012, the Veteran attended a VA neurology consultation. On this occasion, the complained of intense neck pain that radiated into her left arm. The Veteran recounted that she was diagnosed with carpal tunnel syndrome according to the EMG mentioned previously, but felt that this diagnosis was incorrect. The Veteran then informed the VA neurologist that she strongly wanted a disc replacement. After providing a diagnosis of chronic neck pain due to degenerative disease, disk osteophytes, and disc herniation, the VA neurologist stated that disk replacement surgery was perhaps "appropriate" in view of the Veteran's "spinal cord issue." The VA neurologist placed requests for a new EMG to be performed and for the Veteran to be authorized to consult a non-VA provider for spine surgery. One week later, on February 7, 2012, the Veteran was approved for 3 visits to non-VA physician Dr. Cappuccino regarding spinal surgery, to include disc replacement. VA agreed to pay for each of the Veteran's consultations with Dr. Cappuccino. Thereafter, after consulting with Dr. Cappuccino, the Veteran agreed to have spinal surgery performed. Specifically, on May 8, 2012, Dr. Cappuccino performed an anterior diskectomy C5-C6; removal of bony spondylosis C5-6, C6-7; disk space distraction and anterior wide foraminotomy C5-6, C6-7 with anterior cervical disk fusion using PEEK cages; and OsteoCel plus stem cell allograft matrix, local autogenous bone, and Lanx Snowcap screw. The procedure was performed at Eastern Niagara Hospital and Dr. Cappuccino provided pre- and post-operative diagnoses of degenerative disc disease, C5-6, C6-7 with cervical stenosis and left sided cervical myeloradiculopathy. As indicated from this evidence of record, VA did not in fact first offer the Veteran surgery for her cervical spine in 2012. Additionally, it did not negligently or recklessly delay the Veteran from having Dr. Cappuccino perform the procedure on May 8, 2012. Rather, the record demonstrates that VA repeatedly discussed and offered surgery as an avenue of care from at least November 2004. On each occasion up until January 2012, the Veteran declined and expressed no interest in having surgery performedeither by a VA provider or through a non-VA medical professional at VA expense. Consistent with the disability picture painted by the Veteran's VA treatment records, a VA medical professional in January 2020 reviewed the Veteran's entire claims file and opined that it was less likely than not that the Veteran obtained an additional disability of the cervical spine as a result of VA's treatment. The professional also stated that the Veteran's cervical spine did not become worse as a result of VA's care during the relevant timespan in this case. In support of these conclusions, the January 2020 professional explained that the Veteran was offered surgery on multiple occasions between 2004 and 2012 and, generally, surgery would only be offered if there were neurological signs associated with a cervical spine condition. The January 2020 professional stated that this was the course followed in the Veteran's case and she declined in almost all instances up until the surgery was eventually performed in 2012. The Board finds the January 2020 VA opinion to be adequate for adjudicative purposes as it (1) was based upon a consideration of the Veteran's relevant medical historyi.e., the Veteran's condition leading up to the May 8, 2012 surgery; (2) described the Veteran's treatment leading up to the May 8, 2012 surgery in detail; and (3) provided reasoned explanations in support of its conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran's reports that she possesses medical training and experience through her work in emergency medical services. See October 2014 Veteran Statement. However, her opinion regarding VA's contended negligence, even when considering her experience, does not outweigh the other probative evidence of record. Specifically, the statements contained in the Veteran's VA treatment records leading up to the May 8, 2012 surgery indicate that VA repeatedly discussed surgical treatment options with the Veteran and offered her referrals to VA and non-VA specialists concerning spinal surgery since at least November 2004, only for her to decline up until January 2012. Accordingly, as the Veteran's statements are inconsistent with the other evidence of record, the Board ultimately finds that VA did not proximately cause the Veteran's surgery to be performed on May 8, 2012. Accordingly, entitlement to compensation under 38 U.S.C. § 1151 is denied. REASONS FOR REMAND 1. Compensation under 38 U.S.C. § 1151 for a Hemangioma of the Spine Dissimilar from the above decision concerning entitlement to compensation under 38 U.S.C. § 1151 regarding the cervical spine, the Board finds that the issue of entitlement to compensation under 38 U.S.C. § 1151 for a hemangioma of the spine must be remanded for additional development. Specifically, in November 2018, the Board remanded this issue for the provision of a VA medical opinion to address whether any hemangioma was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the Veteran hospital care, medical or surgical treatment, or examination. This requested opinion was provided in January 2020; however, the Board finds it to be inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, in support of an opinion that the Veteran's hemangioma was not caused by the carelessness or negligence of VA, the January 2020 VA examiner stated that the Veteran's hemangioma was not incurred in or caused by a claimed in-service injury, event, or illnessa reference to service connection on a direct basis as provided by 38 C.F.R. § 3.303. As the January 2020 opinion possibly blended standards for 2 different types of compensation claims, the Board finds that an additional remand is warranted for the provision of an additional VA medical opinion. 2. Service Connection for a Cervical Spine Disability and a Hemangioma of the Spine Like the above issue concerning compensation under 38 U.S.C. § 1151, the Board finds the issues of entitlement to service connection for a cervical spine disability and a hemangioma of the spine must be remanded for the provision of additional VA medical opinions. Specifically, in November 2018, the Board remanded these service connection issues for the provision of additional VA medical opinions. The requested opinions were provided in January 2020. However, the Board finds these post-November 2018 opinions to be inadequate for adjudicative purposes. Regarding both the cervical spine and the hemangioma, the January 2020 VA examiner was to address service connection both on direct and secondary bases. However, the opinions concerning direct service connection did not address the Veteran's contention that her current hemangioma and cervical spine disabilities were caused by or related to a 1983 fall in service. Additionally, the opinions provided in regard to secondary service connection used causation language in explaining negative opinions addressing a lack of aggravation by the already-service-connected degenerative disc disease of the lumbar spine, contrary to the Court of Veterans Appeals' (Court's) holding in Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Thus, the Board finds that remand is warranted for the provision of additional VA medical opinions. 3. A Temporary Total Rating Based on Convalescence Following Cervical Spine Surgery As the Veteran's cervical spine service connection issue is being remanded for additional development, the Board concludes that a decision on entitlement to a temporary total rating for the cervical spine would be premature at this time. Where a pending claim is inextricably intertwined with a claim currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Forward the Veteran's claims file to an appropriate VA medical professional for the provision of a medical opinion regarding the Veteran's claim for compensation under 38 U.S.C. § 1151 regarding a hemangioma of the spine. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the expert. After thoroughly reviewing the history of the case, the professional should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran developed any disability/additional disability as a result of VA treatment, to include misdiagnosis or failure to directly treat the Veteran's hemangioma of the spine. (b.) If the Veteran did develop disability/additional disability as a result of VA treatment, to include misdiagnosis or failure to directly treat the hemangioma, please state whether it is at least as likely as not (50 percent probability or more) that any such disability/additional disability i. was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or ii. an event not reasonably foreseeable. The professional must provide thorough explanations and support for any opinions expressed, with a discussion of any relevant peer-reviewed literature referenced in formulating the requested opinion. If the professional cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 2. Forward the Veteran's claims file to an appropriate VA clinician for the issuance of a medical opinion regarding the Veteran's claim for service connection for a cervical spine disability. The clinician should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. If the clinician determines that an examination is necessary, one should be provided. Thereafter, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current cervical spine disability was incurred in, caused by, or is otherwise related to service. In providing a response to part (a), please directly address the Veteran's contention her cervical spine disability was caused by or related to a fall in service out of a gamma goat vehicle from a height of 13 feet. (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current cervical spine disability was proximately caused by the Veteran's service-connected degenerative disc disease of the lumbar spine. (c.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current cervical spine disability was aggravated (worsened beyond natural progression) by the Veteran's service-connected degenerative disc disease of the lumbar spine. In providing a response to part (c), please note that aggravation may be substantiated by even a temporary worsening of the cervical spine disability during the claim period. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Forward the Veteran's claims file to an appropriate VA clinician for the issuance of a medical opinion regarding the Veteran's claim for service connection for a hemangioma of the spine. The clinician should review the Veteran's entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. If the clinician determines that an examination is necessary, one should be provided. Thereafter, the clinician should address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hemangioma was incurred in, caused by, or is otherwise related to service. In providing a response to part (a), please directly address the Veteran's contention her hemangioma was caused by or related to a fall in service out of a gamma goat vehicle from a height of 13 feet. (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hemangioma was proximately caused by the Veteran's service-connected degenerative disc disease of the lumbar spine. (c.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current hemangioma was aggravated (worsened beyond natural progression) by the Veteran's service-connected degenerative disc disease of the lumbar spine. In providing a response to part (c), please note that aggravation may be substantiated by even a temporary worsening of the hemangioma during the claim period. The clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). (Signature on Next Page) S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.