Citation Nr: 21005356 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-28 782 DATE: February 1, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional disability caused by VA surgical care in September 2007, to include cervical stenosis, with myelopathy/radiculopathy, is denied. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran has additional disability caused by VA surgical care in September 2007, but such was not due to negligence or fault on VA’s part in providing such care or an event not reasonably foreseeable. 2. The Veteran’s service-connected disabilities do not result in the physical loss or permanent loss of use of one or both hands or feet, permanent impairment of vision in both eyes with corrected central visual acuity of 20/200 or less in the better eye or central visual acuity of more than 20/200 with a visual field defect of a degree specified by regulation, severe burn injury, amyotrophic lateral sclerosis, or ankylosis of one or both knees or hips. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional disability caused by VA surgical care in September 2007, to include cervical stenosis with myelopathy/radiculopathy have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for establishing eligibility for financial assistance in the purchase of an automobile or other conveyance and/or automobile adaptive equipment are not met. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.808. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1977 to January 1978 and from May 1979 to June 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran presented testimonial evidence at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were remanded for further development in March 2019 and July 2020. They have since been returned to the Board for further appellate review. While these matters were in post-remand status, the Agency of Original Jurisdiction (AOJ) granted the Veteran’s claims for entitlement to compensation under 38 U.S.C. § 1151 for a psychiatric condition and a bladder condition; they are thus no longer on appeal. The Board notes that the May 2020 rating decision granting service connection for these conditions was based on a medical opinion from August 2018 specifically focused on these claims, and further that the Board’s review of the Veteran’s claims is de novo, and the Board is not bound by the AOJ’s factual determinations or interpretations of the evidence on appeal. See 38 C.F.R. §§ 19.7, 20.104, 20.300. Additional appeals concerning the issues of entitlement to service connection for sleep apnea and erectile dysfunction have previously been withdrawn and dismissed. 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability caused by VA surgical care in September 2007, to include cervical stenosis, with myelopathy/radiculopathy, is denied. The Veteran asserts that he suffered additional spinal cord injury caused by September 2007 surgeries performed by the Atlanta VA Medical Center, including C6 corpectomy and anterior fusion, two emergency hematoma evacuations, and posterior cervical decompression and fusion with instrumentation from C5-C7. He claims that he suffers from residuals of the surgery including upper and lower nerve damage, decreased use of his hands, feet, and legs, and breathing problems. When a veteran suffers additional disability as the result of VA training, hospital care, medical or surgical treatment, or examination, disability compensation shall be awarded in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. For claims filed on or after October 1, 1997, as in this case, a claimant must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C. § 1151. From the plain language of the statute, it is clear that to establish entitlement to 38 U.S.C. § 1151 benefits, all three of the following factors must be shown: (1) that there is 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. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the VA medical or surgical treatment to the veteran's condition after such medical or surgical treatment has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish causation. 38 C.F.R. § 3.361(c)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical or surgical treatment proximately caused a veteran's additional disability, the veteran must show that the medical or surgical treatment caused the additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is 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. 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 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). A VA medical opinion concerning the claim was provided in July 2013. The VA neurosurgeon noted review of the relevant operative notes, discharge summaries, progress notes, laboratory data, and imaging studies. He opined that the Veteran’s post-surgical condition is slightly worse as a result of his postoperative complication. The neurosurgeon further opined that there were no technical errors in the performance of the procedures, that the patient had an appropriate assessment, and that the correct procedure was performed. He indicated that the preoperative labs did not show evidence of any coagulopathy, and that following surgery, the Veteran had a delayed decline in his neurological status which was diagnosed and treated appropriately and in a timely manner. At the time of his hematoma complication, the Veteran’s coagulation values remained normal and drains had been utilized in both procedures. The neurosurgeon additionally found that the second hematoma/deterioration was also diagnosed and treated in a timely manner. He concluded that the outcome was a well described complication of cervical spine surgery that could not have been foreseen or prevented. The Veteran’s representative submitted a private medical opinion from January 2018, where the physician noted review of the July 2013 VA medical opinion, and agreement that the Veteran had additional disability following the first surgery and that the additional disability was unforeseeable. In the narrative portion of the opinion, however, the physician wrote that postoperative hematomas are a known complication and there was nothing to suggest the Veteran was at a higher risk. He further stated that the Veteran’s care was appropriate, but that the Veteran did decline in function following his surgery, which is also a known risk. A clarifying opinion from this physician was obtained in December 2018 and submitted on the Veteran’s behalf. The physician checked a box indicating that the resulting additional disability was unforeseeable, but again wrote that “[n]eurologic deterioration is a known risk of spinal surgery. However it is not a common risk and is always unforeseeable.” At the December 2018 Board hearing, the Veteran testified that he did not recall any doctor specifically going through the risks of surgery with him. He stated that they talked a little bit about the benefits, and what recovery would entail, but did not discuss the risks. Pursuant to the Board’s March 2019 remand directives, the Veteran was provided with an additional VA examination and medical opinion in May 2019. The examination report, signed in July 2019, includes reference to a number of specific relevant VA medical records, but acknowledged that the examiner did not have access to the complete signed informed consent from the initial procedure. The examiner concluded that the Veteran has additional disability beyond the level of disability present immediately prior to the initial September 2007 surgeries, reasoning that surgical complications occur due to surgical intervention and manipulation of neurovascular and musculoskeletal structures, as well as postoperative bleeding that can cause hematoma requiring additional surgeries. He further concluded that incomplete neurogenic bladder and bowel which was not present prior to the surgeries as well as worsening level of neurologic disability is additional disability beyond the level of disability present immediately prior to the initial September 2007 surgery. Finally, he stated opinions that “the specific disability is unforeseeable,” but the cause of the additional disability (hematoma requiring emergency treatment) is not unforeseeable, as the neurological structures in the cervical spine affect multiple parts of the body from the neck down and when compromised can cause adverse sequelae, and bleeding is a common complication listed on consent forms. He concluded by stating that the Veteran had additional disability beyond that present prior to the September 2007 surgery, and that “the cause of the disability is foreseeable but the specific additional disability is not foreseeable.” An additional medical opinion was obtained in April 2020. It was the first medical opinion report to include review of the specific informed consent form from the initial September 2007 procedure. However, the examiner concluded that review of the records did not confirm additional disability caused by the September 2007 surgeries, but rather was probably due to progression of the cervical condition and less likely than not due to the surgeries, as the condition existed prior to the surgery. He also found that breathing problems are related to cardiomegaly, as confirmed by chest x-ray from June 2019. A final opinion was obtained in October 2020. The reviewing neurologist acknowledged that the Veteran underwent surgery for decompression of the cervical spine due to myelopathic symptoms, then required emergency surgery the following day for worsening symptoms due to development of a hematoma/blood clot pressing on the spinal cord. While some symptoms improved, others did not, and the Veteran underwent additional surgeries the following day for additional laminectomies, foraminotomies, and fusions, with his condition worsening during and after hospitalization. The neurologist indicated that the Veteran specifically has symptoms related to cervical myelopathy including severe weakness involving all 4 limbs, abnormal or lack of sensation below C6, loss of control of bowel and bladder, breathing difficulty, spasticity, neuropathic pain, sleep apnea, and adjustment disorder with depression due to his decline in physical status. The report included a copy of the contents of the signed September 2007 informed consent document, with the neurologist noting that the list of foreseeable complications included spinal cord injury, paralysis, and bleeding. He concluded that “all of the symptoms which worsened after surgery, while unfortunate, were a foreseeable event after the surgery.” After careful consideration of all the evidence of record, the Board finds that the weight of the evidence is against the Veteran’s claim for compensation under the provisions of 38 U.S.C. § 1151. The Veteran has not asserted, and the probative medical evidence of record does not otherwise indicate that the additional disability suffered as a result of the September 2007 surgeries was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment. A preponderance of the evidence is also found to weigh against a finding that the proximate cause of the Veteran’s additional disability was an event not reasonably foreseeable. In this regard, the Board has specifically considered the Veteran’s contention that he does not recall being told of the risks associated with the procedure prior to undergoing the initial September 2007 surgery, but finds the signed, witnessed, and dated “Consent Form for Treatment/Procedure” to be more probative. Such consent form indicates that the Veteran was going to undergo spine-anterior cervical decompression and fusion, and that known risks of the procedure include, but are not limited to inadequate decompression of the spinal cord or of the nerve roots, neurologic injury (paralysis) due to spinal cord manipulation or contusion, paralysis or pain from nerve root damage, bleeding, postoperative pain, and rigid neck. The October 2020 medical opinion is found to represent the most probative evidence as to the foreseeability of the event leading to the Veteran’s additional disability, as the neurologist had access to the relevant consent form and noted that the foreseeable complications included spinal cord injury, paralysis, and bleeding. The event in question was the development of a hematoma/blood clot and continued or worsening spinal cord injury. While the extent of the additional disability was more than anticipated by the Veteran, that the consent form includes paralysis and spinal cord injury among the possible risks involved with the surgery means that such events leading to the additional disability were foreseeable. In so finding, the Board acknowledges that the earlier medical opinions indicated that the additional disability experienced was unforeseeable, but notes that each such opinion includes internal inconsistencies that render the conclusions less probative. Specifically, the January and December 2018 private opinions include statements that postoperative hematoma and further neurological deterioration are known risks/complications of spinal surgery. Overall, the consensus was that while the exact level of additional disability was unexpected, the event that led to such disability (i.e. the development of hematoma further compressing the spine and nerves and need for additional surgical intervention) was a foreseeable risk of such spinal surgery. Additionally, none of the physicians rendering such opinions had the benefit of access to the signed informed consent form. The Board is sympathetic to the circumstance which led to the Veteran’s significant neurological impairments. However, in this case, the Board finds that the preponderance of the evidence is against the appeal for compensation under 38 U.S.C. § 1151 for additional disability resulting from VA surgical care. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal, and the appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment, or automobile adaptive equipment only is denied. Financial assistance may be provided to an “eligible person” in acquiring an automobile or other conveyance and adaptive equipment, or automobile adaptive equipment only. 38 U.S.C. § 3902(a)(b). Eligibility for financial assistance in the purchase of a vehicle or other conveyance and adaptive equipment is warranted where one of the following exists as the result of injury or disease incurred or aggravated during active service: (1) loss or permanent loss of use of one or both feet; (2) loss or permanent loss of use of one or both hands; (3) permanent impairment of vision of both eyes, meaning central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye; (4) severe burn injury precluding effective operation of an automobile; (5) amyotrophic lateral sclerosis; or, (6) for adaptive equipment only, ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808. In chapter 39 of title 38 of the U.S. Code, Congress established the program authorizing funding for automobiles and adaptive equipment for veterans with certain service-connected disabilities. 38 U.S.C. §§ 3901-04. Pursuant to the authority established in 38 U.S.C. § 3902, the Secretary promulgated 38 C.F.R. § 3.808, which reiterates the § 3901(a) requirement that entitlement to automobile and adaptive equipment is warranted for "the loss or permanent loss of use” of one or both feet or one or both hands. 38 C.F.R. § 3.808(b)(i), (ii). The regulation does not further define the phrase "loss or permanent loss of use." Under the applicable eligibility criteria for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, found in statutory § 3901 and regulatory § 3.808, the appellant must show that they lost their foot or hand or permanently lost the use of a foot or hand as a result of service-connected disability. It is noted that "loss of use" is used in several places in the rating schedule. In the context of special monthly compensation under 38 C.F.R. § 3.350(a)(2)(i), loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. A less restrictive definition is written into 38 U.S.C. § 2101 and 38 C.F.R. § 3.809 regarding specially adapted housing; that regulation specifies that “loss of use” was defined by the adjacent modifier, “such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.” See Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017). However, this modifier is noticeably absent from 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, and had Congress or the Secretary of VA wished for such a definition to apply to these sections, it presumably would have been included. As such, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of functional use of the body part(s), with any need of assistive devices being relevant to, but not dispositive of the question of whether the Veteran has permanent loss of use. The Veteran is presently in receipt of VA service connection benefits for two disabilities: major depressive disorder and bladder dysfunction. The Veteran has not been granted service connection benefits for disabilities involving visual impairment, burn injuries, amyotrophic lateral sclerosis, or disability of the hands and/or upper extremities and feet and/or lower extremities. The Veteran further does not have service-connected disability resulting in fixation of the knee or hip joints. Eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment is therefore unavailable on these bases. The Board notes that the medical evidence of record demonstrates that the Veteran has functional impairment affecting his upper and lower extremities as a result of spinal cord injury. However, as explained in greater detail above, the weight of the evidence is against the award of compensation and benefits pursuant to 38 U.S.C. § 1151 for additional disability, to include neurological complications relating to further spinal compression/deterioration, resulting from VA surgical care provided in September 2007. Eligibility for the benefit sought in this case requires the Veteran to meet at least one of the six criteria enumerated under 38 C.F.R. § 3.808. Because the Veteran does not have service-connected disability resulting in the loss or permanent loss of use of one or both hands or feet, does not have ankylosis of his knees or hips, and does not have any of the other physical disabilities listed among the relevant criteria, he does not qualify for eligibility for financial assistance in the purchase of an automobile or other conveyance and/or adaptive equipment under 38 C.F.R. § 3.808. As such, the claim must be denied. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. In a May 2020 rating decision, the AOJ granted service connection for bladder dysfunction with a 20 percent evaluation effective October 12, 2011 and for major depressive disorder with an evaluation of 30 percent evaluation effective July 31, 2013 to March 3, 2015, 50 percent effective from March 4, 2015 to September 12, 2017, and 100 percent effective from September 13, 2017. Prior to this decision, the Veteran was not in receipt of service connection or 38 U.S.C. § 1151 benefits for any disability. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of the regulation, disabilities resulting from a common etiology or a single accident are considered to be “one disability,” and their ratings are combined to determine eligibility. Although the Veteran has been granted a 100 percent schedular rating for his major depressive disorder from September 13, 2017, he submitted his claim for a TDIU in June 2012. Also, because the Veteran’s bladder dysfunction and major depressive disorder have been found to result from a common etiology/accident, they are considered to be one disability for purposes of meeting the schedular numeric criterion for an award of a TDIU; and from March 4, 2015, they have a combined disability rating of 60 percent. See 38 C.F.R. §§ 4.16(a), 4.25. The Veteran has not yet been provided with VA examination or medical opinion concerning his claim for a TDIU. On remand, a retrospective medical opinion should be sought concerning the extent of the Veteran’s functional impairment from service connected disabilities and how they affected his ability to obtain and maintain substantially gainful employment prior to September 13, 2017. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from an appropriate health care professional addressing any effects the Veteran’s service-connected disabilities had on his occupational functioning from June 2012 to September 12, 2017. The clinician should be given access to the entire claims file and a copy of this remand. If the clinician determines that examination/interview is needed to address the below inquiries, such should be scheduled and the Veteran provided with notice. Based on a review of the claims file, the clinician should fully describe any occupational impairment resulting from the Veteran's service-connected disabilities for the period prior to September 12, 2017. All service-connected disabilities must be addressed. The examiner is advised that the Veteran has been service connected for bladder dysfunction from October 2011 and major depressive disorder from July 2013. A complete rationale should accompany any opinion provided. If an opinion cannot be provided without resort to speculation, such should be stated and a rationale provided for that conclusion. 2. After completing the above, readjudicate the Veteran’s claim of entitlement to a TDIU. If the benefit requested on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.