Citation Nr: 21011947 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-03 360 DATE: March 3, 2021 ORDER Entitlement to compensation benefits under 38 U.S.C. § 1151 for a cervical spine disability is granted. FINDING OF FACT The evidence is in at least relative equipoise as to whether the Veteran’s cervical spine disability is an additional disability caused by carelessness, negligence, lack of proper skill, or error in judgment on the Department of Veterans Affairs’ (VA) part in furnishing the care, treatment, or examination. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for a cervical spine disability have been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.361, 17.1530. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to August 1984 and May 1985 to October 1988. This appeal to the Board of Veterans’ Appeals (Board) arose from a January 2015 rating decision issued by the VA. See January 2015 Notice of Disagreement (NOD); November 2017 Statement of the Case (SOC); January 2018 Substantive Appeal (VA Form 9). The Board notes that additional evidence was received during the appeal period for the prior January 2014 and March 2014 rating decisions that denied the Veteran’s claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for a cervical spine disability. The January 2015 NOD was also received within a year of the January 2014 rating decision. Those rating decisions for the Veteran’s December 2011 claim are, thus, not final. In October 2018, the Board denied the Veteran’s claim of entitlement to compensation benefits under 38 U.S.C. § 1151 for a cervical spine disability. October 2018 Board decision. The Veteran filed a motion for reconsideration of the Board’s decision, which was denied. December 2018 Motion for Reconsideration; April 2019 Board decision. The Veteran appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (CAVC) and CAVC remanded the claim for further reasons and bases for the Board’s decision. July 2020 CAVC decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to compensation benefits under 38 U.S.C. § 1151 for a cervical spine disability. The Veteran asserts entitlement to compensation benefits under 38 U.S.C. § 1151 due to neck and shoulder symptoms resulting from a fall during an August 31, 2011 VA treatment visit. December 2011 VA Form 21-526; January 2018 VA Form 9. The Veteran relates that he was in for a neurology consult and was asked to stand up from seated position without using his hands as part of the examination, which caused him to fall and injure his neck. See January 2018 VA Form 9. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant’s own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 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 hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. 38 C.F.R. § 3.361(c)(1). Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. Id. Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). In addition, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(c). To establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, it must be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. See 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. 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 at 38 C.F.R. § 17.32. Id. The Board finds that the Veteran’s August 31, 2011 VA treatment visit resulted in an additional disability. VA treatment records are consistent with the Veteran’s statement that he attempted to rise from a sitting position as part of his neurology consult examination and fell to the ground. August 2011 VA treatment evidence. Prior to his August 2011 fall, medical treatment evidence shows that the Veteran sought treatment for his back and lower extremities but had no complaints about his neck or upper extremities. See e.g., June 2009 VA treatment evidence; April 2011 VA treatment evidence. The day after his fall, however, the medical treatment evidence shows that the Veteran complained of having stiffness or tension in his neck and a burning sensation between his shoulder blades. September 2011 VA treatment evidence. The Veteran complained of continued neck and upper extremity symptoms since his 2011 fall, has sought use of a spinal stimulator, and is approved for neck fusion surgery. See e.g., January 2015 VA treatment evidence; April 2016 VA treatment evidence; September 2017 VA treatment evidence. The Board finds this medical evidence to be probative in showing that the Veteran’s neck stiffness and pain is an additional disability for purposes of a 38 U.S.C. § 1151 claim. The medical treatment evidence is consistent with the lay statements from M S, C M, and K W. Each lay statement indicates that the Veteran had complained of back pain prior to his August 31, 2011, fall, but after the fall he began to complain about severe neck and shoulder pain. March 2012 Third party correspondence from M S; March 2012 Lay statement from C M; January 2014 Lay statement from K W. Mr. M S and Ms. K W worked with the Veteran and his family for several years, including around the time of the August 2011 fall injury, and, thus, had the opportunity to observe the Veteran. Ms. C M has also known the Veteran for many years. The Board finds the lay statements to be probative in showing that the Veteran has had neck symptoms since his August 31, 2011, VA treatment visit. The Board recognizes that the imaging evidence shows the Veteran has cervical spine degenerative changes that likely preexisted his August 31, 2011, fall. See October 2011 VA treatment evidence; October 2013 VA Private treatment evidence. The January 2014 and January 2015 VA examiners also opined that the Veteran’s neck and shoulder complaints are either a muscle strain or due to his preexisting spondylosis. January 2014 VA examination; January 2015 VA examination medical opinion. However, as discussed above, the medical evidence shows that the Veteran had not complained of neck symptoms prior to his August 31, 2011, fall and then started to complain of neck symptoms immediately after. In addition, his private treatment providers opined that the degenerative changes in his cervical spine may have preexisted his fall injury, but the fall could have caused the cervical disc protrusion noted in the imaging evidence or that the trauma of falling itself could cause cervical strain that aggravated the existing degenerative changes to cause symptoms to develop. See May 2017 Private treatment evidence; April 2018 Private treatment evidence. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s neck symptoms are an additional disability that resulted from his August 31, 2011, fall during a VA treatment visit. The next question for the Board is whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility furnishing the care, treatment, or examination. The Board gives probative weight to private treatment providers H L, M.D., and M M, MS, MA, DC, CVCP. In his July 2018 opinion, Dr. H L noted that the Veteran reported during the August 31, 2011, examination that he had a history of back symptoms and falling due to his knees. July 2018 Correspondence. Given the Veteran’s history, Dr. H L opined that the Veteran’s reported history, a reasonable medical professional would have implemented safeguards while testing the Veteran’s ability to rise from sitting position or perform alternative testing. Id. Dr. H L also noted that the August 2011 VA treatment provider did not conduct any physical examination to first determine the Veteran’s physical capabilities and confirm any contraindications to specific types of testing. Id. Dr. M M offered a similar opinion that the August 2011 VA treatment provider should have taken precautions given the Veteran’s fall risk history and that there were “inappropriate examination procedures.” August 2018 Correspondence. Dr. H L and M M are medical professional qualified to opine on whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault during the August 31, 2011, neurology consult visit that resulted in the Veteran’s fall and additional disability. The doctors also provided detailed rationales to support their opinions. The Board finds their opinions to be probative for these reasons. The January 2014 VA examiner considered the nature of the Veteran’s fall and his neck symptoms, but did not discuss whether the August 2011 VA treatment provider exercised the degree of care expected of a reasonable health care provider by testing the Veteran’s ability to rise from a sitting position given his fall risk history. See January 2014 VA examination. The January 2015 VA examiner, likewise, did not opine on whether the August 2011 VA treatment provider exercised the degree of care expected of a reasonable health care provider, but instead opined that it was reasonable to test the Veteran’s leg strength during a neurological examination and that his symptoms are due to the natural progression of his cervical spondylosis. January 2015 VA examination medical opinion. As neither opinion address whether there is fault, the Board finds the opinions not probative here. Based on the more probative medical and lay evidence, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran’s cervical spine disability is an additional disability caused by carelessness, negligence, lack of proper skill, or error in judgment during his August 31, 2011, VA treatment visit. Accordingly, entitlement to compensation benefits under 38 U.S.C. § 1151 for a cervical spine disability is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin 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.