Citation Nr: 21071040 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-32 340 DATE: November 29, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability due to VA back surgeries is denied. FINDING OF FACT The preponderance of the evidence reflects that the VA back surgeries did not cause additional disability. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for additional disability due to back surgeries are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to August 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for compensation under 38 U.S.C. § 1151 for an additional disability due to back surgery. In February 2015 the Veteran filed a notice of disagreement (NOD) as to his back surgery. In April 2017 the RO issued a statement of the case (SOC) and in June 2017 the Veteran timely filed a substantive appeal (via VA Form 9). In March 2021 the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In May 2021 the Board remanded the Veteran's claim for further evidentiary development, specifically, to obtain a medical opinion. An opinion was obtained and, for the reasons discussed below, the opinion is adequate to decide the claim and the RO therefore substantially complied with the May 2021 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability due to back surgery Pursuant to 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was not the result of a veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701(3)(A), and (2) the proximate cause of the disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after the care or treatment is rendered. 38 C.F.R. § 3.361. The additional disability or death must not have been due to the Veteran's failure to follow medical instructions. 38 C.F.R. § 3.361(c)(3). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. 38 C.F.R. § 3.361(c)(1). Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Id. 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 or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). In April 2013 the Veteran filed a claim for compensation under 38 U.S.C. § 1151 for additional disabilities to his lower back incurred because of a laminectomy performed in January 2011 and a transforaminal lumbar interbody fusion (TLIF) surgery performed in June 2013. In the June 2017 VA Form 9 the Veteran stated that his January 2011 surgery was performed negligently as the surgeon only worked on one side of his back instead of both sides. The Veteran also stated that if the June 2013 TLIF surgery had been performed earlier that his back problems would not be as severe. Additionally, at the March 2021 Board hearing the Veteran testified that an implanted screw in the left side of his back is "hanging on by one thread." The Veteran stated that he experiences shooting pain on the left side of his back and down his leg because this screw was surgically implanted improperly. In August 2021, a VA physician who reviewed the claims file opined it is less likely than not that an additional disability resulted due to his s/p left L4,5 microdiskectomy performed on January 28, 2011 or his subsequent TLIF surgery performed on June 4, 2013. The VA physician also opined that his service-connected low back disability was not aggravated regardless of permanence due to his surgeries. Further, the VA physician opined it was less likely than not that his back pain and radiculopathy symptoms were caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on VA's part or VA's failure to exercise the degree of care that would be expected of a reasonable health care provider. The VA physician also opined it was less likely than not that the Veteran's back pain and radiculopathy symptoms were caused by an event not reasonably foreseeable. As instructed by the Board, the physician specifically considered and discussed the March 2021 VA treatment note indicating a mild medial inferior breech of the left L5 pedicle screw and whether this caused additional disability and was due to VA fault, as well as the other questions posed by the Board, and thus complied with the Board's remand instructions. The August 2021 VA physician acknowledged that the Veteran is competent to report his symptoms and history and noted that an urgent care triage note dated February 3, 2011, shows evidence that the Veteran fell one week after his back surgery during which time he reported experiencing radiating pain in his left leg. The VA physician explained that the Veteran's symptomatology remained the same after his fall in February 2011 and no additional disabilities were found following the June 2013 surgery. The VA physician noted that the Veteran's radiculopathy pre-existed the June 2013 surgery during which pedicle screws were incorporated which suggests his symptoms were not the result of a mile medial inferior breech of the left L5 pedicle screw. The August 2021 VA physician's opinion is highly probative as she reviewed the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented. As the VA physician explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion is entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). There is no contrary medical opinion in the evidence of record. While the Veteran is competent to describe his symptoms, the question of whether these symptoms were caused by the VA back surgeries is a complex medical question as it involves an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). His statements as to whether the VA back surgery are therefore not competent. To the extent that they are competent, the probative value of the Veteran's general assertions is outweighed by the specific, reasoned opinion of the physician who prepared the August 2021 opinion. During the hearing, the Veteran also relayed an opinion by his neurologist indicating that the problem with the pedicle screw had caused additional disability and was negligent. The Veteran is competent to relay this opinion and the opinion is evidence in support of the claim for compensation under 38 U.S.C. § 1151. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). In weighing this opinion against that of the August 2021 VA physician, however, the Board affords more probative weight to the latter because of the specific reasoning addressing each of the elements of the claim, whereas the relayed opinion was more general and lacked reasoning. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning) The Board is sympathetic to the Veteran, but as the preponderance of the evidence reflects that no additional disability resulted from the Veteran's VA back surgeries, an essential element of the claim has not been established. The Board therefore need not address the issues of proximate cause or reasonable foreseeability and the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.