Citation Nr: 21006540 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-29 564 DATE: February 4, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a thoracic spine disability, claimed as a back condition, contended to be due to a June 23, 2010, spinal cord stimulator implant surgery at a VA medical facility, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to November 1975. This matter comes to 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 Roanoke, Virginia. By way of background, the Board previously remanded this matter in April 2018 for additional development following a hearing in November 2016. A transcript of the hearing has been associated with the claims file and reviewed. As will be discussed in more detail below, substantial compliance with the April 2018 remand directives has not been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). Entitlement to compensation under 38 U.S.C. § 1151 for a thoracic spine disability, claimed as a back condition, contended to be due to a June 23, 2010, spinal cord stimulator implant surgery at a VA medical facility, is remanded. The Veteran contends that he developed an additional spine disability after a June 2010 spinal cord stimulator implant surgery and eventual removal of the spinal cord stimulator at a VA medical facility due to negligence on the part of the VA. The Board finds the evidence of record is insufficient to resolve the Veteran’s claim. The Veteran underwent spinal cord stimulator placement at a VA facility to treat chronic pain due to lumbar spondylosis and degenerative disc disease in June 2010. Following the procedure, the Veteran complained of pain and, ultimately, had the device removed. He contends as a result of the placement and ultimate removal of the device he now has chronic pain. The Board previously remanded this claim to obtain a VA examination and opinion to ascertain whether the Veteran, in fact, has an additional disability of the thoracic spine as a result of VA medical care and for any additional disability found, whether the disability/disabilities were the result of (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or (b) an event not reasonably foreseeable. The Veteran was afforded VA examinations in 2019 and 2020, but the Board finds these examinations are insufficient to fully resolve the matter. In 2019, the VA examiner concluded that following the stimulator placement procedure and removal, the Veteran experienced additional disabilities of: (1) a surgical scar and (2) TTP of the paraspinal muscles at the lower third of the incision site. The 2019 VA examiner, however, erroneously offered an opinion regarding service connection rather than entitlement to compensation under 38 U.S.C. § 1151. Of note, the examiner stated that the Veteran experiences residual muscle pain from the implanted device and a more appropriate examination would be a muscle disability benefits questionnaire in an effort to avoid confusion with his non-service connected back condition. The Veteran was afforded another VA examination in April 2020 wherein the examiner identified additional disabilities of: (1) a surgical scar and (2) incisional pain. While the examiner discussed at lengths that the surgical scar was well-healed and, therefore, was not the result of any fault on the part of the VA or due to an event not reasonably foreseeable, no similar opinion was rendered with regard to the incisional pain or the previously identified TTP of the paraspinal muscles at the lower third of the incision site. Consequently, remand is necessary to obtain an addendum opinion regarding the Veteran’s post-procedure incisional pain and TTP of the paraspinal muscles at the lower third of the incision site in order to determine the Veteran’s entitlement to compensation under 38 U.S.C. § 1151. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to an appropriate examiner to conduct a muscle disability benefits questionnaire and render an addendum opinion, including rationale, addressing the Veteran’s disabilities stemming from the June 2010 spinal cord stimulator implant surgery and subsequent removal of the stimulator, to include: (1) surgical scar, (2) incisional pain, (3) TTP of the paraspinal muscles at the lower third of the incision site, and (4) any other disability found that is deemed due to the spinal cord stimulator implant surgery and/or subsequent removal. In particular, for each disability numbered (1) through (4), the examiner is directed to render an opinion whether the disability is at least as likely as not (50 percent or greater probability) a result of (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or, alternatively, (b) an event not reasonably foreseeable. The examiner should review the surgical records as well as any consent forms of record in rendering the opinions requested. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.