Citation Nr: 21074984 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-31 978 DATE: December 16, 2021 REMANDED Entitlement to 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 on active duty in the U.S. Navy from February 1970 to January 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In December 2018, the Board remanded the matter for further evidentiary development. Upon return of the appeal, the Board, in an August 2019 decision, denied entitlement to compensation under 38 U.S.C. § 1151 for residuals of spinal surgery, to include cervical spine surgery. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court granted a Joint Motion for Remand (JMR) vacating the August 2019 Board decision and remanding the matter. In January 2021, the Board remanded the matter for further development. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. In January 2021, the Board directed a VA examiner to opine whether it is at least as likely as not that the April 1998 surgery of the cervical spine caused additional disability, and if so, whether the proximate cause of such was the result of either (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA facility care or medical treatment, or (2) was an event not reasonably foreseeable. A VA examiner was also directed to address whether any additional disability of the cervical spine is the type of risk that would have been disclosed in connection with informed consent procedures. Pursuant to the Board's remand, a VA medical opinion was obtained in September 2021. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In rendering the negative nexus opinions, the VA examiner used similar rationale as the prior May 2019 VA examiner. The VA examiner referenced that the Veteran objected strongly to the use of the cervical plate as part of the operation at issue. The VA examiner further noted that the operative report "suggested" that placement of the plate was a planned part of the operative procedure, but qualified in her opinion that "even if it were not," the Veteran's degenerative disc and joint changes with spinal stenosis, myelopathy cervical spinal stenosis, or cervical spine arthritis were not caused by or became worse as a result of carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). As indicated by the June 2020 JMR, such a rationale does not 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. Indeed, one of the central contentions of the Veteran is that he was not informed that a plate would be placed in his cervical spine and, alternatively, that a plate was not supposed to be placed in his cervical spine. Further, the September 2021 medical opinion only addressed the Veteran's degenerative disc and joint changes with spinal stenosis, myelopathy cervical spinal stenosis, and cervical spine arthritis. As highlighted by the June 2020 JMR, the Veteran has also asserted other disabilities, to include lockjaw, breathing problems, and morphine-related heart problems that he attributes to the April 1998 operative procedure. Consequently, another remand is warranted to obtain a VA medical opinion to determine whether the Veteran has additional disability as a result of his cervical spine surgery performed at a VA Medical Center in April 1998. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified VA physician to determine whether it is at least as likely as not that the April 1998 surgery of the cervical spine caused additional disability. The claims folder must be reviewed in conjunction with such. (a.) If it is determined that the April 1998 surgery caused additional disability, the VA examiner must opine as to whether the proximate cause of any such disability was the result of either (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA facility care or medical treatment, or (2) was an event not reasonably foreseeable. Attention is directed to 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 took Tramadol and Percocet; a June 2013 report from a chiropractor, which noted a history of neck surgery in 1998 with residual right shoulder girdle and neck pain; and the Veteran's claimed disabilities of lockjaw, breathing problems, and morphine-related heart problems that he attributes to the April 1998 surgical procedure. (b.) The VA examiner must also address the Veteran's contentions that (1) he was not informed that a plate would be placed in his cervical spine, and (2) that a plate was not supposed to be placed in his cervical spine. (c.) Attention is directed to the April 1998 operative note that stated "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 these were answered in detail. The risks include, but are not limited to" a list of risks that does not include the placement of a plate or problems caused by said placement. Competent lay statements regarding any claimed additional disability must be addressed. A full and complete rationale is required for all opinions expressed. 2. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.