Citation Nr: 21076210 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-18 581 DATE: December 22, 2021 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a low back disorder is denied. FINDING OF FACT The Veteran's low back disorder did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical treatment. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a low back disorder are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from June 1987 to July 1989. These issues come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This matter was recently remanded in August 2021 for additional development. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that his low back disorder is the result of back surgery conducted by VA personnel. His claim for compensation was received by VA in January 2012. Law and Regulations In order to warrant compensation under 38 U.S.C. § 1151, there must be a qualifying additional disability which 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 the proximate cause of the additional 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; see also 38 C.F.R. § 3.361. Further, in order for a disability to qualify for compensation under 38 U.S.C. § 1151, the disability must not have been the result of the veteran's willful misconduct. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these three (3) factors must be shown: (1) additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. In determining whether a veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his condition after such care or treatment. 38 C.F.R. § 3.361 (b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which care or treatment 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). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Evidence and Analysis The Veteran reported that he experienced back pain and urinary incontinence and requested surgery to correct these issues. He underwent an L5-S1 spinal fusion in April 2006. The Veteran signed an informed consent for the procedure in January 2006. It was noted that the risk of this procedure included a risk of new injury or a failure to resolve his symptomology. He was given the opportunity to ask questions, and it was noted that he understood and freely consented without coercion. The lumbar fusion operation report indicates that the procedure was performed without complications and that the Veteran was subsequently transferred to the Recovery room neurologically intact. See April 2006 VA treatment record. However, the Veteran reported having ongoing and worsening back pain and incontinence issues since immediately after surgery. He testified at his Board hearing that a metallic screw was malpositioned on the right lower side resulting in urinary incontinence and ongoing back pain with an inability to lift anything. He also testified that he required additional back surgeries to remove the fusion hardware, was shown three metal fragments from the screws in his spine by a VA clinician, and was told that a nerve wrapped around the malpositioned screw. The Veteran's wife also testified that his condition had worsened as a result of the VA low back surgery and that the surgeon responsible for the spinal fusion admitted to making a surgical mistake that resulted in the Veteran's present condition. The Board finds that there is evidence the Veteran experienced additional disability following the surgery. 38 C.F.R. § 3.361 (b). Nevertheless, merely receiving treatment and having an additional disability is not evidence of causation or of faulty care. 38 C.F.R. § 3.361 (c)(1). A review of the post-service VA and private treatment records indicate low back complaints post spinal fusion surgery. An October 2006 disability certificate noted a diagnosis of "screw malposition" which would require another spinal surgery to remove the hardware. An April 2007 VA clinical record from a neurosurgery resident includes the annotation that imaging reveals "... a misplaced left S1 pedicle screw, which has a trajectory within the spinal canal encroaching both the left L5 and S1 nerve roots. In addition, his right L4 pedicle screw is medial in the pedicle and may be encroaching on the right L5 nerve root." The record further indicates a computed tomography myelogram was conducted "... confirming misplacement of the left S1 pedicle within the spinal canal and also the right L5 pedicle screw, which is medial and the pedicle bone does not appear to be within the canal." Furthermore, a November 2019 private medical report noted that the placement of a right-sided screw during the 2006 spinal fusion "apparently damaged" one of the right-sided nerves that resulted in right leg nerve pain. The Veteran underwent a VA examination in August 2014. He was diagnosed with mild to moderate degenerative disease at L4-5 and Grade One spondylolisthesis and severe degenerative disease at L5-S1. The examiner then gave a negative opinion that the Veteran's claimed disability was caused by or became worse as a result of VA medical treatment. The examiner found that the Veteran's back condition had improved since his 2006 spinal fusion. The examiner also found that the claimed additional disorders did not result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA surgeon. The examiner also found that the claimed additional disabilities result from an event that could not have been reasonably been foreseen by a reasonable healthcare provider and/or surgeon. However, no rationale was provided for these opinions. An addendum VA medical opinion was issued in November 2020. The examiner gave a negative opinion that the low back disorder was the result of VA treatment. The examiner noted that the VA diagnosis and treatment were appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met. The examiner also noted that the informed consent documents for the spinal fusion surgery showed standard potential for full, partial or no changes post-operative. The examiner went on to note that the results of the spinal fusion surgery were more possible given the pre-operative spondylolisthesis and right sided symptoms. No other opinions or rationale were provided. A second addendum VA opinion was issued in January 2021. The examiner found that there was no evidence that the right-sided pedicle screw status post L5-S1 spinal fusion was "malpositioned" and, thus, there was no evidence that it was responsible for the worsening low back issues. The examiner found that a review of the VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, and that the standard of care was met in this case. No other opinions or rationale were provided. An addendum VA opinion was issued in October 2021. The examiner gave a negative opinion that the low back disorder was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of VA medical treatment. The examiner, after reviewing the Veteran's testimony, VA examination reports, October 2006 disability certificate and November 2019 private medical report, found that any screw malpositioning would be an unfortunate outcome of such an extremely difficult and sensitive surgery in a setting of spondylolisthesis. He noted that the healing of the bone was unpredictable especially in a setting in which foreign materials such as screws were used for fixation. The examiner found no medical or objective evidence that would warrant support for the contention that there was either carelessness, negligence, lack of skill, error in judgment or similar instances of fault were involved. He noted that the Veteran had very significant pathology prior to the surgery to include the extremely advanced symptoms of urinary problems as well as radiculopathy to the right leg. The examiner noted that none of these symptoms were due to the malpositioned screw. He went on to note that the current low back disability was all due to the pre-surgery back problems that necessitated surgery and were absolutely not caused by VA treatment. The examiner noted that the Veteran had radiculopathy, pain and urinary issues prior to the surgery and had them after the surgery. Furthermore, the examiner noted that the malpositioning of the screw was a potential problem associated with foreign body materials being used for the fixation of bones in such a circumstance, but that it did not cause any new issues in this matter. The Board finds that these VA opinions are adequate, as they were based upon a complete review of the evidence of record, consideration of the Veteran's lay statements and contentions, and clinical examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These opinions are also probative because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the evidence of record, the Board finds that the preponderance of the evidence demonstrates that the Veteran was provided informed consent for the April 2006 lumbar surgery, that his low back disorder was not the result of an event not reasonably foreseeable, and that the low back disorder was not due to faulty VA care. The evidence of record reveals that the low back complaints did not resolve post lumbar surgery, which was a noted risk found on the informed consent documents prior to surgery. In addition, the October 2021 VA examiner noted that any screw mispositioning was an unfortunate potential outcome of the lumbar surgery, due to the unpredictability of bone healing in a setting in which screws are used for fixation. Significantly, the examiner noted that the mispositioned screw did not cause any of the Veteran's reported symptomology. Furthermore, the examiner noted that the Veteran experienced similar low back pain and urinary incontinence before and after the lumbar spine surgery. Finally, the medical evidence of record reveals that the current low back disorder was the result of his pre-surgery problems and that his lumbar surgery was conducted without complications. Based on this evidence, the Board finds that the Veteran's low back disorder is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical treatment. The Veteran and his spouse have testified that they were informed that the surgeon responsible for the spinal fusion admitted to making a surgical mistake that resulted in the Veteran's present condition. They are competent to report on this. The probative value of this opinion is cumulatively outweighed by the probative value of the reports of VA examinations which do not indicate that the Veteran experienced additional disability as a result of the treatment by VA. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his low back disorder is the result of VA medical treatment. The Board notes the Veteran and his wife's aforementioned Board hearing testimony. However, while they may be credible to describe the particular symptoms which they experience or observe, determining the exact nature and diagnosis of the low back disorder requires specialized testing and medical knowledge or training which they are not shown to have. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, they cannot provide opinions as to etiology in such cases. In addition, they lay statements are outweighed by the pertinent evidence of record demonstrates that low back disorder was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical treatment. Accordingly, these lay statements are entitled to low probative value. Based on the evidence above, including the competent and persuasive opinions provided by the VA examiners as well as the Veteran's signed consent form, the Board finds that the preponderance of the evidence reflects that the Veteran's low back disorder post lumbar fusion surgery is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment. Accordingly, the claim for compensation pursuant to 38 U.S.C. § 1151 must be denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED