Citation Nr: 21075372 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-28 338A DATE: December 20, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability due to VA spinal surgery with neck artery damage is denied. FINDINGS OF FACT 1. The Veteran provided informed consent for the surgery on September 29, 2015 that is the subject of this appeal. 2. The Veteran's neck artery damage was an additional disability proximately caused by VA surgery, but it was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on fault on part of VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to benefits pursuant to 38 U.S.C. § 1151 for an additional disability due to VA spinal surgery with neck artery damage have not been met. 38U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.361, 3.1000 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the United States Air Force from February 1971 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in March 2017 and a Statement of the Case (SOC) was issued in April 2018. The Veteran perfected an appeal by submitting a timely VA Form 9 in June 2018. Supplemental statements of the case (SSOC) were issued in July 2018 and in March 2019, continuing the previous denial. The Veteran and his representative appeared in a December 2019 hearing. A transcript of that hearing has been associated with the record. The issue was previously before the Board. In June 2021, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to: (1) obtain and associate with the file all records contained in Vista Imaging and IMED, including those associated with the September 29, 2015 anterior cervical discectomy and fusion; (2) ensure that the Veteran's VA Medical Center treatment records from August 1, 2015 to the present have been obtained and included in the claims file; (3) obtain an addendum opinion to address whether it is at least as likely as not that the Veteran sustained an additional disability, to include intraoperative left vertebral artery injury, headaches, lightheartedness, dizziness, and/or neck pain as a result of VA's treatment; and, (4) obtain an opinion as to whether it is at least as likely as not that an additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. In June 2021, the AOJ added imaging records from March 2010 to August 2019. It also added VA Medical Center treatment records from July 2015 to September 2018. The AOJ then obtained medical opinions on whether the Veteran sustained an additional disability and whether it was at least as likely as not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in August 2021. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denial in a supplemental statement of the case (SSOC) issued in October 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. Compensation under 38 U.S.C. § 1151 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death 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 additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran 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 continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph I of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability or death 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. 38 C.F.R. § 3.361(d). 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 § 17.32 of this chapter. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability due to VA spinal surgery with neck artery damage The Veteran contends that he sustained additional disabilities due to a procedure he received at a VA Medical Center and that the "surgeon was not experienced nor qualified." The contended additional disabilities are an intraoperative left vertebral artery injury, headaches, lightheadedness, dizziness, and neck pain. As an initial matter, the Board finds that the Veteran sustained an additional disability, specifically intraoperative left vertebral artery injury while undergoing a cervical corpectomy on September 29, 2015 as opined by the August 2021 VA examiner. The examiner also opined that that the intraoperative left vertebral artery injury was an accident that "may happen along the course of the procedure due to proximity of the anatomical structures in the neck area [in spite of upmost care being observed]," indicating that the injury was a foreseeable event. Thus, the remaining questions at issue are whether the VA failed to exercise the degree of care that would be expected of a reasonable health care provider or whether the VA furnished care without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1). As discussed above, the Veteran contends both that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider by allowing an inexperienced or unqualified surgeon to perform the surgery, and that he was not properly informed as he was under the impression that Dr. B.W. would perform the surgery rather than Dr. K.H. In August 2015, Dr. K.H. spoke with the Veteran under the indirect supervision of Dr. B.W. to discuss the Veteran's assessment and plan of care. A few days later, he was again counseled by Dr. K.H. regarding the strategies for pain management and agreed that "an ACDF would be an acceptable surgical option for him, planning to do both a C3-4 and C4-5 levels." The Veteran was agreeable to "this plan of care." Dr. B.W. was "the provider for this situation" and he was directly supervising the clinic that day. One of the risks explained to the Veteran was vascular injury. The Veteran and Dr. K.H. met again in September 2015, and Dr. K.H., a surgical resident at the time, was the "practitioner obtaining consent" with Dr. B.W. as the attending physician and supervising practitioner. The Veteran had decision making capacity and the Veteran also consented to "blood products (if applicable)," again indicating the possibility of complications requiring blood transfusion. There were no witnesses named. Dr. B.W. reviewed the clinical history and imaging studies and noted that there was a "higher risk of CSF leak" and was concerned that "decompressing posteriorly with ventral pathology may increase the risk of a C5 palsy which can occur with either [anteriorly or posteriorly] approach." Dr. B.W. also wrote that they have counseled the Veteran about the surgical procedures and that risks, including vascular injury were explained. The Veteran requested that they proceed with the surgery. Treatment records note that the surgeon was Dr. B.W. with Dr. K.H. listed as the "first assistant," on September 29, 2015 and Dr. B.W. as the "surgeon." A complication of "left vertebral artery injury at the level of C4 requiring massive transfusion protocol" was noted. In explaining the injury on a separate note, Dr. B.W. wrote that he performed the surgery, stating numerous times that he performed both the surgery and addressed the injury that occurred during the procedure. The notes also detail that it was Dr. B.W. who planned the surgery and interpreted the imaging studies. Dr. B.W. also "expressed [his] regret" that the injury occurred and updated the Veteran's spouse to all events "as they occurred." The Veteran was to be intubated "until the swelling resolves and he completely stabilizes." Another surgery was performed on the same date for angiogram and embolization. The Veteran's spouse consented to the surgery and consent was obtained by radiologist M.F. The supervising practitioner was Dr. B.W. and the practitioner performing the procedure was Dr. G.P. On September 30, 2015, Dr. K.H. assessed that the Veteran had cervical radiculopathy status post C4 corpectomy complicated by left vertebral artery injury with subsequent severe intraoperative hypotension requiring massive transfusion protocol. The Veteran was then extubated and denied any numbness or tingling. He was alert and oriented to self and location but was "a bit off in time." He also stated that radicular right arm pain was much improved with no neck or right shoulder discomfort. He was cleared to begin out of bed activity and therapy on October 1, 2015. The Veteran had problems with swallowing that improved later in the same day. The next day, the Veteran reported being drowsy after taking pain medication and reported pain "level 2." He was discharged from the VA Medical Center on October 5, 2015 and was given a walker. On October 9, 2015, the Veteran reported that he was instructed to stop taking gout medication before surgery, but he did not stop as he was having mild pain and swelling in his right hand. He did report stopping other medications as instructed. The Veteran reported developing swelling and left-hand pain, but did not report headaches, dizziness, lightheadedness, or neck pain. On October 13, 2015, the Veteran reported improving right upper extremity pain and numbness as well as transient dizziness when standing that improved. In his March 2017 NOD, the Veteran contended that he sustained an artery injury during surgery and that he believed to be at higher risk of stroke because of it. In his June 2018 VA Form 9, the Veteran contended that the examiner spent "less than 30 minutes" talking to him, that an inexperienced and unqualified surgeon performed his surgery, and that there was "brain blood flow" that would subject him to strokes according to a VA cardiologist. In December 2019, the Veteran testified that the surgeon who operated on him was a resident who was under training and that he believed it would be Dr. B.W. that would be performing the surgery, not Dr. K.H. The Veteran testified that he was "still experiencing pain" and that he believed it was due to the "actual cervical issue." The Veteran clarified that his contention is that it was lack of proper skill due to the resident providing the treatment and that he was under the impression that it was Dr. B.W. that was doing the surgery. He further testified that as a result of the surgery that he was hesitant to allow the VA to "even touch [him]." The Veteran also believed that the VA Medical Center brought in an "experienced surgeon" after the initial surgery. The Veteran testified having light headedness and dizziness since surgery. In August 2021, a VA medical practitioner reviewed the evidence associated with the Veteran's file and opined that it was at least as likely as not that the Veteran sustained an additional disability, to include intraoperative left vertebral artery injury. The examiner added that "accidents may happen along the course of the procedure due to [the] proximity of the anatomical structures in the neck area [in spite of utmost care being observed." Put another way, due to the proximity of the anatomical structures in the neck area, the injury was foreseeable and could have happened even with the utmost care. Although the examiner did not specifically state that the injury was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the Board finds that the examiner answered this question when he stated that it could have happened in spite of utmost care being observed. Thus, the Board finds that the August 2021 medical opinion is adequate as it is supported by proper, albeit concise, rationale. The examiner further added that the other disabilities claimed, such as headaches, lightheadedness, dizziness and/or neck pain were less likely than not as a result of the surgery as the main complication of blood loss was addressed during the operation and did not show "sequela or residuals of acute blood loss." The Board again finds that the August 2021 medical opinion regarding the other disabilities to be adequate as it is supported by rationale. The Board understands the Veteran's frustration that the September 2015 surgery was conducted with Dr. K.H. as the practitioner obtaining consent. The medical evidence of record, however, clearly indicates that both Dr. K.H. and Dr. B.W. were present at the operation and that Dr. B.W., as the supervising practitioner, was heavily involved in all stages of the surgery, including planning, operation, and dealt with the complication both as it occurred and in addressing it during the second operation that followed. Dr. B.W. also expressed regret that this occurred and communicated the complication to the Veteran's spouse, and his notes indicate that the injury occurred despite his planning and involvement. Dr. B.W. added that no CSF leak, another possible complication explained to the Veteran, occurred once the intended decompression was performed. In other words, based on the medical evidence of record, despite Dr. K.H. being the practitioner obtaining consent, the surgery was done by both doctors if not with Dr. B.W. playing a greater role as the supervising practitioner. The Board also observes that the records are inconsistent as to the names of the roles played by the doctors as some records state that Dr. K.H. was the "primary surgeon" while others state that she was the "first assistant." This inconsistency, however, further suggests that both doctors were heavily involved in the surgery. Therefore, it would be inaccurate to place the responsibility on any one doctor. There is no evidence of record, and the Veteran does not contend, that Dr. B.W. is also inexperienced or lacks qualification. Regarding the Veteran's contention that he was originally informed that Dr. B.W. would be performing the operation, the Board finds that the medical evidence of record shows that Dr. B.W. did in fact perform the operation, although not by himself. As discussed above, Dr. B.W. reviewed the Veteran's imaging studies, planned the operation, was present at the operation that caused the Veteran's additional disability, addressed the complication in a short time, was present at the second operation, and took responsibility for the operation as the surgeon communicating the complication to the Veteran's spouse. As Dr. K.H. was the doctor who obtained consent from the Veteran and was listed in the consent form, the Board finds it reasonable to assume that the Veteran was informed of Dr. K.H.'s involvement in his operation. Although not specifically contended by the Veteran, the Board also finds that the Veteran was properly informed of not only the risks and his specific additional disability, a left vertebral artery injury, but of other injuries that could cause the loss of blood. In summary, although the Veteran believes that a more experienced doctor would not have caused the additional disability, and that he was misinformed as to who would be performing the surgery, there is no medical evidence of record supporting his contentions. To the contrary, the medical evidence of record shows that the injury occurred despite the supervising doctor planning and performing the operation with the resident surgeon and that the Veteran's consent was obtained with the resident surgeon listed as the surgeon obtaining consent. (continued next page) Thus, the evidence in this case does not reach the level of equipoise. 38 U.S.C. § 5107(a). The Board concludes that the Veteran's additional disability, although caused by the VA, does not meet the criteria for compensation under 38 U.S.C. § 1151 as the VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider and furnished surgical treatment with the Veteran's informed consent. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.