Citation Nr: 21076860 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 19-06 352 DATE: December 28, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a back surgery, to include lower extremity neuropathy, status-post surgery is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a heart disability, to include atrial fibrillation (Afib), status-post surgery is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for toxic thyroid goiter and residuals of thyroidectomy, status-post surgery is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1973 to June 1974. Entitlement to compensation under 38 U.S.C. § 1151 is remanded. The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for permanent worsening of his heart and thyroid due to a December 2008 surgical procedure and permanent worsening of his lumbar spine due to a March 2009 surgical procedure, both of which performed at the Department of Veterans Affairs (VA) Medical Center in San Francisco, California. During his June 2021 Board hearing, the Veteran asserted that he had complications, notably bilateral lower extremity neuropathy and difficulty walking, due to his dura being cut during his March 2009 L3, L4, and partial L5 laminectomy. He asserted that the surgical notes indicate that the surgeon purposefully cut his dura. While recovering from the surgery, the Veteran developed arachnoiditis. The Veteran, a Doctor of Psychology, noted that the U.S. National Library of Medicine notes that arachnoiditis is a very rare disorder. The Veteran noted that his arachnoiditis was caused by the purposeful cuts to the dura that caused him to have mobility deficits, such as an inability to run and jump. The Veteran asserted that the surgeon said "oops, I just cut the dura," and a second statement that he cut the dura on purpose. Next, the Veteran asserted that he was diagnosed with a benign multinodular goiter and Afib. The physicians at the VA Medical Center in San Francisco, California believed the Veteran had thyroid toxicosis and found that a thyroidectomy would be the best treatment to treat his Afib. However, the Veteran was told by the VA physicians at the Stanford VA Medical Center located in Menlo Park, California that a thyroidectomy is not considered to be appropriate treatment for Afib. The Veteran continued to be treated for Afib after his December 2008 thyroidectomy. In December 2016, a VA examiner found that the December 2008 thyroidectomy was medically appropriate and that the Veteran's Afib was controlled after the procedure. Also, the Veteran's complications were medically foreseeable. Further, the examiner noted that a dural tear was made during the March 2009 spinal surgery and that it is not uncommon to encounter difficulty which would cause a complication of a dural tear. The Board notes that the examiner did not address whether the dural care that the 2009 physician caused was an unforeseeable event that proximately caused the additional disability. The Board notes that the March 2009 VA informed consent note did not indicate surgical intervention involving the spinal dura. Also, the Board notes that the VA treatment records from the Stanford VA Medical Center located in Menlo Park, California are not of record, nor are the surgical notes from the March 2009 lumbar surgery. In light of the foregoing, a remand is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. Obtain the Veteran's VA treatment records from the VA Medical Center in Menlo Park, California. Also, obtain the complete surgical notes for the December 2008 thyroid surgery and the complete surgical notes for the March 2009 back surgery. 3. After the above actions have been completed, obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran's back disability. The Veteran's record must be reviewed, as well as the Veteran' assertion which were received on June 22, 2021. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. If an in-person examination cannot be conducted, an examination by other means must be offered. The examiner should respond to the following questions: (a.) With regard to the March 2009 L3, L4, and partial L5 laminectomy, did the Veteran sustain any additional disability, including mobility deficits, such as an inability to run and jump? If there was additional disability after the laminectomy, is it the result or due to the March 2009 surgery? The examiner must address the surgery notes, which have been reported to show accidental and/or purposeful cuts to the Veteran's spinal dural tissue. (b.) If there was such additional disability, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? (c.) Did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider? (d.) And, was the proximate cause of any additional disability, to include mobility deficits, such as an inability to run and jump, not reasonably foreseeable? 4. After the above actions have been completed, obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran's heart and thyroid disabilities. The Veteran's record must be reviewed, as well as the Veteran' assertion which were received on June 22, 2021. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. If an in-person examination cannot be conducted, an examination by other means must be offered. The examiner should respond to the following questions: (a.) With regard to the December 2008 thyroidectomy, did the Veteran sustain any additional disability, including the need for medications? If there was additional disability after the thyroidectomy, is it the result or due to the December 2008 surgery? The examiner must address the assertion that a thyroidectomy is not considered to be appropriate treatment for Afib and that the Veteran was diagnosed with benign multinodular goiter rather than toxic multinodular goiter. (b.) If there was such additional disability, was it the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment? (c.) Did VA fail to exercise the degree of care that would be expected of a reasonable healthcare provider? (d.) And, was the proximate cause of any additional disability, the need for medication, not reasonably foreseeable? S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.