Citation Nr: 21007498 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-35 224A DATE: February 9, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional disability, to include a sciatic nerve disability of the right lower extremity, incurred as a result of a May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels at the Ann Arbor VA Medical Center (MC) is denied. FINDING OF FACT The Veteran does not have additional disability, to include a sciatic nerve disability of the right lower extremity, as a result of a cervical decompressive laminectomy at the C4 and C5 levels performed at the Ann Arbor VAMC on May 12, 2009. CONCLUSION OF LAW The criteria for entitlement to compensation for additional disability, to include a sciatic nerve disability of the right lower extremity, under 38 C.F.R. § 1151 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1974 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2020, the Veteran’s representative requested a copy of the Veteran’s July 2020 examination report and an extension of 30 days from receipt of the requested July 2020 examination report. On December 9, 2020, the July 2020 examination report was sent to the Veteran’s representative. Thus, as the Veteran’s representative’s request for a copy of the July 2020 examination report was fulfilled, as she did not request an additional extension of time, and as the prior extension of time requested has elapsed, the Board may proceed with appellate review. This matter, entitlement to compensation under 38 U.S.C. § 1151 for a sciatic nerve disability of the right lower extremity incurred as a result of a May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels at the Ann Arbor VAMC was previously before the Board. Specifically, in June 2019, the Board denied the claim. The Veteran appealed the Board’s June 2019 denial of the claim to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in February 2020, the Court granted a January 2020 Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), vacated the Board’s June 2019 decision, and remanded the case to the Board for readjudication consistent with the JMR. Pursuant to the January 2020 JMR, the Board remanded the claim in July 2020. It now returns for appellate review. 1. Entitlement to compensation under 38U.S.C. §1151 for additional disability, to include a sciatic nerve disability of the right lower extremity, incurred as a result of a May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels at the Ann Arbor, VAMC The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran’s willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. Under these provisions, the additional disability or death due to hospital care, medical or surgical treatment, examination, or training and rehabilitation services requires actual causation. 38 C.F.R. § 3.361. To determine whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361(b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a Veteran’s additional disability, it must be shown that the medical treatment caused the Veteran’s additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. 38 C.F.R. § 3.361(d) & (d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim 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 of this chapter. In this case, the Board finds that the Veteran did not have additional disability due to the cervical decompressive laminectomy at the C4 and C5 levels performed at the Ann Arbor VAMC on May 12, 2009. The record reflects the Veteran had a total laminectomy at C4 and partial laminectomies at C3 and C5 for cervical spine decompression, on May 12, 2009, at the Ann Arbor VAMC. Additionally, a February 2015 examiner endorsed a diagnosis of mild incomplete paralysis of the right sciatic nerve. The Veteran contends entitlement to compensation benefits under 38 U.S.C. § 1151 for additional disability, namely a sciatic nerve disability of the right lower extremity, as a result of a cervical decompressive laminectomy at the C4 and C5 levels performed at the Ann Arbor VAMC on May 12, 2009. Specifically, in his July 2014 application for benefits, the Veteran reported the surgery performed on his C-2, C-3, and C4 resulted in injury to his right leg and right foot. In a July 2014 statement, the Veteran reported following the surgery he developed foot drag in his right foot, had involuntary shaking in his right leg, and had severe pain in his right leg. In April 2015 statement, the Veteran reported, in pertinent part, he did not have foot drag, or pain and numbness in his right side, until immediately after the surgery. In a June 2015 notice of disagreement, the Veteran reported he did not have disabilities of nerve damage to the right leg and right foot, involuntary shaking in his right leg, severe pain in his right leg and foot drag until after the surgery. In his July 2016 substantive appeal, the Veteran reported nothing mentioned in his records about nerve damage to cause foot drop and severe shaking until after the back surgery in 2009 and that something went wrong during the surgery and caused permanent damage to his body. Also, the Veteran linked his sciatic nerve disability of the right lower extremity, to the cervical decompressive laminectomy at the C4 and C5 levels, performed on May 12, 2009, in VA treatment records. Specifically, a July 2011 VA treatment record documented that the Veteran reported he had had a cervical spinal fusion in May 2009, which accentuated the pain that was previously present. An October 2018 VA treatment record documented the Veteran reported sciatic pain from his neck throughout his back and legs and that he had right foot drop ever since had cervical surgery in 2009. More recently, a January 2020 VA treatment record documented the Veteran reported he dragged his right leg since he had neck surgery in 2009 and a February 2020 VA treatment record, documented the Veteran reported, in part, he had had weakness since 2009 after neck surgeries. Additionally, in statement received by VA in June 2015, the Veteran’s friend, reported the Veteran was in good physical health before 2009, when he had neck surgery, and after his surgery, he was in constant pain, walked with a limp, and dragged his right leg. Similarly, in another statement, also received by VA in June 2015, C. W. reported the Veteran was in good physical condition until 2009, when he had neck surgery, and following surgery, he had been walking with limp and dragging his right leg, was in constant pain, and had involuntary shaking of his right leg. Additionally, in a statement received in June 2015, R. S. reported in 2009, the Veteran had surgery on his neck, and now he dragged his right leg with a limp and had constant pain. However, despite the assertions of the Veteran, his friend, C. W. and R. S., the Board finds that the weight of the evidence does not show that the Veteran sustained additional disability, including a sciatic nerve disability of the right lower extremity incurred as a result of a May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels at the Ann Arbor VAMC. In this regard, the January 2020 JMR found the Board provided an inadequate statement of reasons or bases for its decision with regard to the reliance on the two nexus opinions of record, dated in February 2015 and March 2015. Specifically, the January 2020 JMR explained the February 2015 opinion seemingly associated Veteran’s claimed additional disability with his treatment at the Ann Arbor VAMC; however, the March 2015 opinion, while agreeing with part of the February 2015 opinion, concluded that any claimed additional disability was unrelated to Veteran’s cervical spine procedure. Thus, the JMR questioned how the Board found against the claim as one opinion contained a positive nexus statement, and the other a negative nexus statement, and both were deemed equally probative by the Board. Pursuant to the January 2020 JMR, the Board remanded the claim for another opinion in July 2020. The resulting July 2020 examiner explained he had reviewed the conflicting medical evidence, and based on the records, the Veteran consulted for a lower extremities neurologic problems dating back in May 2009. The July 2020 examiner further explained an April 20, 2009 VA neurology note, prior to the May 2009 surgery, stated the Veteran had a “history of chronic back and neck pain; and had right foot drop (spastic).” The July 2020 examiner also noted the Veteran had a total laminectomy C4, partial C3, C5 laminectomy for cervical depression on May 12, 2009 but found, based on the chronology of medical records symptoms of lower extremity, diagnosed as sciatic nerve disability, this predated the cervical spine surgery. Therefore, the July 2020 examiner opined that it was less likely than that any sciatic nerve disability of the right lower extremity was caused by the May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels. Additionally, the July 2020 examiner also found it was less likely than not that any sciatic nerve disability of the right lower extremity was aggravated (underwent a permanent worsening) by the May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels. The July 2020 examiner further explained that there was no medical evidence found to confirm aggravation of the sciatic disability secondary to the May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels. Thus, the Board finds that the Veteran does not have additional disability, to include a sciatic nerve disability of the right lower extremity, incurred or aggravated, as a result of a May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels at the Ann Arbor VAMC. In this regard, the July 2020 examiner’s opinions are probative, because they are based on review of the record, including the February 2015 and March 2015 opinions and the Veteran’s subjective complaints, and provides explanations that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As referenced above, there are also two other nexus opinions of record dated in February 2015 and March 2015. The February 2015 examiner found it was more likely than not that the Veteran’s additional disability resulted from an event that could not have been reasonably foreseen by a reasonable health care provider. As a rationale, a February 2015 examiner found the Veteran had loss of right ankle jerk, and with the findings of L4-L5 degenerative changes in the lumbar spine noted on x-ray in June 2014, it was the examiner’s opinion that S1 radiculopathy was contributing, in addition to the abnormal valgus foot posture and the severe hallux valgus deformity. In this regard, in May 2020 argument, the Veteran’s representative argued, in part, given that the February 21, 2015 VA examiner specifically found that the Veteran’s additional disability resulted from an event that could not have been reasonably foreseen by a reasonably health care provider, he was entitled to compensation. However, the February 2015 opinion is less probative as it does not provide an explanation or rationale as to why the loss of right ankle jerk was due to or aggravated by the cervical spine surgery. In addition, the February 2015 examiner’s finding that it was more likely than not that the Veteran’s additional disability resulted from an event that could not have been reasonably foreseen by a reasonable health care provider is inconsistent with the evidence of record. VA regulations define events not reasonably foreseeable as those that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In its determination, VA considers whether the event is a risk that would be disclosed in an informed consent form for the treatment provided. 38 C.F.R. § 3.361(d)(2). Here, the Veteran’s signed May 12, 2009 informed consent specifically stated the known risks of this treatment/procedure (cervical decompressive laminectomy C4, C5) included, but were not limited to, paralysis from the neck down and no movement or sensation in arms and legs. Thus, the Veteran’s reported right leg symptomology, to include pain, numbness, impaired gait, and foot drop, are akin to known risks of lack of movement and sensory deficit. For these reasons, the reported right leg symptomatology cannot be found to be an event not reasonably foreseeable. Thus, as the February 2015 examiner’s opinion inconsistent with the informed consent form, obtained in conjunction with the May 12, 2009 procedure, the opinion lacks probative value. Id. The March 2015 examiner opined that the Veteran’s right lower extremity peripheral nerve disease was “completely unrelated” to the Veteran’s May 12, 2009 VA cervical spine procedure. The March 2015 examiner concurred with the February 2015 examiner’s opinion that the Veteran’s right lower extremity symptoms could not be due solely to a cervical spine condition and found there was more likely than not a concurrent right sciatic nerve radiculopathy present due to degenerative lumbosacral spine disease accounting for the disproportionate involvement of the right lower extremity. Thus, although the March 2015 examiner explicitly found the Veteran’s right lower extremity peripheral nerve disease was not due to his May 12, 2009 cervical decompressive laminectomy, this finding is ambiguous in the context of entire opinion. Specifically, the March 2015 examiner also noted the right sciatic nerve radiculopathy present was “concurrent” which generally implies that it may have been partially, although not solely, due to a cervical spine condition. Consequently, as the March 2015 examiner’s opinion contains internal inconsistencies, it lack probative value. Id. In May 2020 argument, the Veteran’s representative argued the February 2015 and March 2015 VA opinions showed that the Veteran’s sciatic nerve radiculopathy was aggravated due to the surgery. However, the Board has carefully reviewed each opinion and is unable to discern any such findings. Further, discussed above, the February 2015 and March 2015 opinions lack probative value. Rather, also as discussed above, the July 2020 examiner provided an adequate opinion regarding aggravation. Further, notwithstanding the July 2020 examiner’s findings, the Board notes that the record is void of objective evidence showing the Veteran additional disability, including disability permanently aggravated, as a result of a cervical decompressive laminectomy at the C4 and C5 levels performed at the Ann Arbor VAMC on May 12, 2009. In this regard, the Board recognizes in May 2020 argument, the Veteran’s representative argued that the Veteran provided testimony that his right foot and leg problems, nerve damage to the right leg and right foot drag, were due to his operation at the Ann Arbor VAMC in May 2009. However, as discussed by the July 2020 examiner explained the symptoms of lower extremity predated the cervical spine surgery. As to the Veteran’s condition immediately before the May 12, 2009 VA surgical treatment, the Board finds that the Veteran’s right leg symptomology was manifested by pain, numbness, impaired gait, foot drop, and an indication of spastic movement. Specifically, a December 2, 2008 VA treatment record noted the Veteran reported he awoke three days ago, stretched his neck backwards and now he had shooting, achy pains down his arms, legs, and back, and that he felt off balance. A December 17, 2008 VA treatment record noted the Veteran reported earlier in December, he stretched his neck and back and began having shooting pains, numbness down both arms and legs, cervicalgia, and a sense that he was stumbling. A December 29, 2008 VA treatment record noted the Veteran reported a complaint of neck pain shooting down the arms and legs for one month and documented the Veteran had an unsteady gait, with toe, heel and tandem gait, and no truncal ataxia. February 23, 2009 and March 18, 2009 VA treatment records noted the Veteran reported that one morning after waking up, he stretched the back of his neck and felt a severe electric pain in his cervical area, that radiated to bilateral legs down to his lower calves, that he had had bilateral leg stiffness, right more than left, and that he had had at least four falls, because he could not lift his right foot up enough. The February 23, 2009 VA treatment record documented as to the Veteran’s gait, he walked with a cane, was able to walk with his heels but was unable to walk on his toes, and had right foot drop (spastic?). The March 18, 2009 VA treatment record also documented the Veteran’s walked with decreased weight bearing on his right leg and used a cane for ambulation. Thereafter, an April 4, 2009 VA treatment record noted the Veteran reported a complaint of difficulty with his gait for a few months, that he woke up one morning in early December and when he extended his neck, he had a sharp electric like sensation down the spine and into both arms and legs, and that he had noticed that he tended to stagger at times, but had no vertigo. An April 20, 2009 VA treatment record noted the Veteran still has a right foot drop and walked with a cane. The April 20, 2009 VA treatment record also documented as ot the Veteran’s gait, he walked with a cane, was able to walk with heels but was unable to walk on toes, and had right foot drop (spastic?). A May 11, 2009 preoperative attending note documented the indications for the procedure (the planned cervical decompressive laminectomy C 4, C5) were the Veteran had difficulty with his gait. Additionally, a May 12, 2009 pre-operative medical record documented the Veteran had weakness in the right leg. Similarly, a May 12, 2009 pre-anesthesia unit perianesthesia record documented the Veteran had weakness on the right side. A May 12, 2009 operative report documented the Veteran had had a few months of complaining of difficulty with walking and poor coordination with walking. A May 12, 2009 nurse intraoperative report documented there were not any immediate complications. A May 12, 2009 discharge summary documented that by the morning of postoperative day number one, the Veteran continued to be neurologically stable, he was out of bed and ambulating, complained of moderate stiffness in the neck, and was able to get out of bed and walk without difficulty. A May 12, 2009 postoperative nursing admission assessment noted, as to the Veteran’s mobility, he had stiffness, weakness, and history of falls and his gait was shuffling and unsteady. Another May 12, 2009 postoperative record documented the Veteran had full dorsiflexion and plantar flexion. Following the May 12, 2009 surgery, the Board finds that the Veteran’s right leg symptomology was again manifested by pain, numbness, impaired gait, foot drop and an indication of spastic movement. Specifically, a May 13, 2009 neurosurgery inpatient note documented the Veteran had much pain in his neck but felt his arms and legs were better than preoperatively, and this record also documented he had good strength in all limbs. A June 6, 2009 VA treatment record noted the Veteran presented for removal of staples following cervical decompressive laminectomy, that he had a spastic gait, and was dragging the foot in particular; however, the record also documented the Veteran said he had shown some improvement post operatively. A June 8, 2009 VA treatment record noted the Veteran, in terms of his status post cervical laminectomy last month, was overall doing fairly well, and noted he still was with some right lower extremity weakness. A July 15, 2009 physical therapy note documented the Veteran was without new complaints or concerns and a July 17, 2009 physical therapy note documented the Veteran reported he was beginning to feel improvement. An August 12, 2009 physical therapy note documented the Veteran’s gait appeared to be improved with less drop foot noted. An August 21, 2009 physical therapy note documented the Veteran had noted improvement in right leg and his standing balance was fair and he ambulated with a standard cane with occasional foot drag on the right. Thereafter, a September 14, 2009 VA treatment record noted the Veteran had a laminectomy in May 2009 and he does not feel any better, that he was still in therapy and said since the surgery he was dragging his right leg and right knee was very stiff and most of the pain was sharp and constant. An October 5, 2009 physical therapy note, as to the Veteran’s diagnosis of cervical myelopathy, noted the Veteran reported he continued to have good days and bad days and that he had as not seen his surgeon for follow-up lately but would schedule an appointment. For these reasons, the Board does not find that the additional disability criteria for compensation under 38 U.S.C. § 1151 are met. Specifically, the fact that the Veteran continued to have right leg symptomology manifested by pain, numbness, impaired gait, and foot drop, as well as an indication of spastic movement, which is akin to the Veteran’s description of involuntary shaking, following the surgery is not dispositive in this case because the standard is additional disability based on comparison of the Veteran’s condition before and after the VA treatment. Additionally, also of record are October 2009 and April 2010 VA psychiatric notes which documented that subsequent to surgery for the cervical spine in May, the Veteran had had more difficulty with his right leg, walked with a cane and needed a foot cast for foot drop. However, these October 2009 and April 2010 VA psychiatric notes appear to document the Veteran’s own report rather than providing an independent finding as the medical provider was a staff psychiatrist rather than a doctor specializing in physical ailments. Similarly, an October 2018 VA treatment record documented the Veteran had a history of right sided weakness resulting from cervical neck surgery/nerve damage. However, the October 2018 VA treatment record again appears to document the Veteran’s own report as to the etiology of his right sided weakness rather than providing an independent finding as the medical provider cited to a September 2018 medical record but did not address any relevant May 12, 2009 surgical records. Additionally, February 2020 VA treatment records noted a past medical history of lower extremity weakness secondary to cervical C2‐C4 surgery. However, to the extent VA treatment records, include the cited records dated in October 2009, April 2010, October 2018 and February 2020, provide an indication of link to the Veteran’s right lower extremity and his May 123, 2009 cervical surgery, they do not provide any rationale nor is there any indication that the Veteran’s claims file was reviewed, and thus, lack probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the Veteran, his friend C. W. and R. S., believe the Veteran had additional disability, to include a sciatic nerve disability of the right lower extremity, incurred as a result of a May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels at the Ann Arbor VAMC, they are not competent to provide an opinion in this case. The issue is medically complex, as it requires specialized medical education. Therefore, it is outside the competence of the Veteran, C. W. and R. S., in this case because the record does not show they have the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, their opinions are not adequate to rebut the competent medical evidence, including the July 2020 examiner’s findings and opinions, nor are they otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a nexus to the Veteran’s May 12, 2009 cervical decompressive laminectomy. Further, the statements of the Veteran, C. W. and R. S. all have generally reported the Veteran’s symptoms onset following his May 12, 2009 procedures, which, as discussed, is inconsistent with the medical evidence of record prior to May 12, 2009. Consequently, the Board gives more probative weight to the competent medical evidence, including the July 2020 examiner’s findings and opinions. Accordingly, Board finds that the preponderance of the evidence is against a finding that the Veteran suffers from an additional disability, to include a sciatic nerve disability of the right lower extremity, within the meaning of 38 U.S.C. § 1151 incurred or aggravated as a result of a May 12, 2009 cervical decompressive laminectomy at the C4 and C5 levels at the Ann Arbor VAMC. As there is no additional disability shown, the Board need not reach the question of causation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.