Citation Nr: 21007268 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-10 764 DATE: February 9, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral lower extremity disability, claimed as a vascular disability and peripheral neuropathy. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a cervical spine disability under a 38 U.S.C. § 1151 referral basis for a cervical spine surgery is remanded. Entitlement to service connection for a bilateral lower extremity disability to account for pain and vascular problems, to include as due to a cervical spine disability, is remanded. Entitlement to service connection for a thoracolumbar spine disability, to include as due to a cervical spine disability, is remanded. Entitlement to service connection for a bilateral hip disability, to include as due to a cervical spine disability, is remanded. FINDINGS OF FACT 1. In a May 2013 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a bilateral lower extremity disability to account for pain. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the May 2013 rating decision relates to an unestablished fact that raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral lower extremity disability to account for pain. CONCLUSIONS OF LAW 1. The May 2013 rating decision that denied the claim of entitlement to service connection for a bilateral lower extremity disability to account for pain is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral lower extremity disability to account for pain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1963 to December 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2017 and November 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim of entitlement to service connection for a bilateral lower extremity vascular disability and bilateral lower extremity peripheral neuropathy, both presenting as pain in the lower extremities, have been consolidated and recharacterized, to include consideration of all bilateral lower extremity disabilities to account for pain reasonably raised by the record.. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits). A May 2013 rating decision denied entitlement to service connection for a bilateral lower extremity disability to account for pain, finding the Veteran had no in-service complaints for such a disability. The Veteran did not appeal that decision, and VA adjudicators did not receive new and material evidence within one year of the issuance of the decision. Thus, the May 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Veteran submitted a private medical treatment letter in December 2017 that addressed lower extremity pain and weakness (difficulty standing and bending) and a possible nexus to the Veteran’s cervical disability claim under 38 U.S.C. § 1151. This evidence is new as it was not previously considered, and it is material as it addresses a potential nexus to the Veteran’s cervical spine claim under 38 U.S.C. § 1151. 38 C.F.R. § 3.156(a). Accordingly, the May 2013 rating decision as it pertains to a bilateral lower extremity disability to account for pain is considered reopened. The November 2017 rating decision that denied service connection for, inter alia, a neck disability per 38 U.S.C. § 1151 and, secondary to the neck disability, claims for a bilateral hip disability, a thoracolumbar spine disability, and a bilateral lower extremity disability to account for pain. As noted above, in December 2017 the Veteran submitted relevant private treatment records regarding his neck disability claimed under 38 U.S.C. § 1151, his thoracolumbar spine disability, and pain in his bilateral hip and lower extremity disabilities. See December 2017 letter from P.O. The December 2017 medical letter was new as it had never previously been considered and it was material because it addressed a nexus between the Veteran’s cervical spine surgery and radiating back and lower extremity pain. 38 C.F.R. § 3.156(b). In November 2018, the RO addressed this new and material evidence as it pertained to the Veteran’s claim under 38 U.S.C. § 1151 claim but failed to address the symptoms of pain in the thoracolumbar spine that radiated to the Veteran’s lower extremities. Accordingly, the November 2017 never became final as to the claims of service connection for bilateral hips, bilateral lower extremities, and thoracolumbar spine disabilities. In November 2020, the Veteran testified before the undersigned. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. Entitlement to compensation under 38 U.S.C. § 1151 for a cervical spine disability under a 38 U.S.C. § 1151 referral basis for a cervical spine surgery is remanded. The Veteran asserts that his current cervical spine disability represents a qualifying additional disability that was not a reasonably foreseeable event arising from the VA’s recommendation to undergo cervical spine surgery. See December 2017 Veteran lay statement. Generally, 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 to 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. In this regard, the Veteran’s VA treatment records reflect that he was diagnosed with cervical spine disease in December 1998 that progressively worsened to severe cervical spondylosis. See December 1998, February 2003 VA treatment records. On or about May 2008, the Veteran was referred to a fee-based neurologist who was rendering services within a VA facility. The neurologist, Dr. M.C., diagnosed multi-level cervical degenerative disc disease with a kyphotic deformity and complaints of paresthesias in the Veteran’s arms and hands. See May 2008 VA treatment records. Dr. M.C. went on to describe that a “C3-C7 ACDF with posterior fixation and a correction of his kyphotic deformity with extensive foraminotomies” would help relieve his neck pain and paresthesias though would result in a limited range of cervical motion and recommended the surgery to the Veteran. Id. Based on this conversation, the Veteran agreed to the surgery and the VA authorized payment for Dr. M.C. to perform the operation at a private medical facility. See August 2008 VA treatment records. VA treatment records reflect that Dr. M.C. performed this surgery on November 3, 2008 at St. Mary’s Regional Medical Center, though the operative report is not of record in the claims file. See November 2008 VA treatment records. In a November 2018 rating decision, the RO denied the Veteran’s claim for service connection of an additional qualifying cervical disability finding that the Veteran’s surgery did not qualify for consideration under 38 U.S.C. § 1151 because the surgery was not conducted by a VA employee or at a VA facility. See 38 U.S.C. § 1151. The Board agrees that the surgery at issue was performed in a facility over which the Secretary does not have direct jurisdiction, and therefore, the surgery is not considered care furnished by VA for the purpose of receiving compensation under 38 U.S.C. § 1151. Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized that a claimant may succeed under a referral theory pursuant to section 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of section 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151(a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. In this case, under the holding in Ollis, compensation benefits may be granted pursuant to § 1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran’s cervical spine surgery in November 2008 (i.e., that the VA practitioners recommended that the Veteran have the surgery performed), (2) an “unforeseeable event” occurred, and (3) the unforeseeable event proximately caused the Veteran’s additional disability, if any. As noted above, the surgeon who recommended the Veteran undergo the “C3-C7 ACDF with posterior fixation and a correction of his kyphotic deformity with extensive foraminotomies” did so while working within a VA medical center and his recommendation was adopted and payment authorized by the same VA medical center; thus the Veteran’s claim is one regarding a “referral” pursuant to 38 U.S.C. § 1151(a)(1)(B) as an event not reasonably foreseeable. Notably, the Veteran was treated for wound infection with dehiscence (bursting open of a wound) two weeks post-operation. See November 2008 VA treatment records. Subsequent to the November 2008 operation, the Veteran was also diagnosed with cervical radiculopathy and post laminectomy syndrome of the cervical region. See May 2009, February 2011 VA treatment records. In December 2017, the Veteran submitted a statement from a medical provider who stated that the “rationale for such surgery was dubious, at best.” The Veteran continues to be treated for a cervical spine disability. See January 2020 VA treatment records. Accordingly, the Veteran has established a viable theory of entitlement to service connection for an additional qualifying cervical spine disability on a “referral” basis under § 1151(a)(1)(B) as an event not reasonably foreseeable, a current diagnosis, and evidence of a nexus between the two. See December 2017 private medical letter. Thus, the Board finds that a medical opinion is needed on remand. All outstanding treatment records, including but not limited to the cervical spine operative report and its associated informed consent, must be obtained on remand. Entitlement to service connection for a bilateral lower extremity disability to account for pain and vascular problems, to include as due to a cervical spine disability, is remanded. Entitlement to service connection for a thoracolumbar spine disability, to include as due to a cervical spine disability, is remanded. Entitlement to service connection for a bilateral hip disability, to include as due to a cervical spine disability, is remanded. The Veteran asserts that he has a qualifying additional cervical disability under 38 U.S.C. § 1151 that is the proximate cause of, or has otherwise aggravated, his thoracolumbar spine disability, a bilateral hip disability, and a bilateral lower extremity disability. See September 2019 Notice of Disagreement (NOD), November 2020 Board Hearing Transcript at 6-9. The Veteran has current diagnoses of disabilities in the bilateral hips, thoracolumbar spine, and bilateral lower extremities. See July 2019, December 2019, January 2020 VA treatment records. The December 2017 private medical letter and Veteran lay statement asserts a relationship between the November 2008 cervical spine surgery and these current diagnoses. As such, the Board finds these disabilities to be inexplicably intertwined with the remanded cervical spine claim. A contingent examination of the thoracolumbar spine, bilateral lower extremities, and bilateral hips is warranted on remand, should the Veteran’s cervical spine claim prove successful. See McLendon, supra. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include the authorized cervical spine surgery operative report performed at St. Mary’s Regional Medical Center and any associated informed consent documentation. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Only after completing #1 and 2 above, obtain a medical opinion pursuant to 38 U.S.C. § 5109 / 38 C.F.R. § 3.328 from a qualified physician, preferably an orthopedic surgeon, to address whether the Veteran has additional disability caused by non-VA surgery. The clinician should specifically address the following: (a.) Does the Veteran have “additional disability” proximately caused by VA’s referral of the Veteran to Dr. C. at St. Mary’s for C3-7 ACDF in November 2008? If so, please identify the nature of his post-surgical additional disability, to include whether there is additional disability in the form of aggravation of an already existing cervical spine disability, and any neurological impairment of the upper extremities. (b.) If the Veteran has an additional disability caused (or aggravated) by the VA’s referral to Dr. C. at St. Mary’s for C 3-7 ACDF, is it at least as likely as not (50 percent or greater probability) that such additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with the informed consent (primary health care provider explains the reasonably foreseeable risks associated VA treatment or services furnished the Veteran)? Please thoroughly explain why or why not. 4. If and only if benefits are established for a cervical spine disability as a result of #3 above, schedule the Veteran for examinations of his thoracolumbar spine, bilateral lower extremities (to include peripheral arterial disease and peripheral neuropathy), and bilateral hips. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. Following a full review of the claims file, the examiner should address the following: (a.) Please identify all thoracolumbar spine, bilateral hip, and bilateral lower extremity disabilities (vascular and neurologic) present since November 2008. If no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran’s reported pain causes any functional impairment. (b.) For each disability so identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) such disability: (1) is proximately due to the cervical spine disability; or (2) has been aggravated (worsened beyond natural progression) by a cervical spine disability. Please answer (1) and (2) separately, and please do not rely on the fact that the primary disability (here, cervical spine disability) was not service-related or diagnosed at the time of the incurrence of the secondary disability, or the opinion will be returned as inadequate. Please provide a robust rationale for each opinion. If unable to opine without speculation, please provide a basis for this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.