Citation Nr: 21012605 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-35 338A DATE: March 4, 2021 ORDER Compensation pursuant to 38 U.S.C. § 1151 for loss of use of the right arm due to cervical spine fusion surgery performed by a VA-contracted surgeon at a non-VA facility in April 2014 is denied. FINDINGS OF FACT 1. The Veteran served on active duty from March 1972 to April 1975. 2. The April 2014 cervical spine fusion surgery, which resulted in worsened right upper extremity (RUE) weakness and worsened cervical myelopathy, was performed at a non-VA medical facility based on VA’s referral. 3. Negligence is not shown on the part of VA in referring the Veteran for the surgery at a non-VA medical facility, as the worsened RUE weakness and worsened cervical myelopathy were foreseeable, known risks of surgery. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for loss of use of right arm due to cervical spine fusion surgery performed by a VA-contracted surgeon at a non-VA facility in April 2014 have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5107, 5121A (2012); 38 C.F.R. § 3.361 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In July 2019, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant law and regulations, a veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the appellant’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the appellant under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. In determining whether a veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the condition after the care or treatment is rendered. The additional disability or death must not have been due to the veteran’s failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that he or she has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the appellant’s or, in appropriate cases, the appellant’s representative’s informed consent. The second prong of proximate causation requires that the appellant’s additional disability or death be an event that was not reasonably foreseeable. This fact 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 the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures outlined in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment, the expected benefits, reasonably foreseeable associated risks, complications or side effects, reasonable and available alternatives, and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). Failure “to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.” McNair v. Shinseki, 25 Vet. App. 98, 107 (2013). VA regulations provide that hospital care or medical services furnished under a contract with non-Department facilities pursuant to the provisions of 38 U.S.C. § 1703 are not considered treatment by a VA employee or in a VA facility. See 38 C.F.R. § 3.361(f). A claimant may succeed under a referral theory pursuant to 38 U.S.C. § 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 Court addressed the application of § 1151 to referral situations when the disability-causing event occurred 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. The Court held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that the VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Court further held that § 1151(a)(1)(B) required that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault) - i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. The Veteran seeks compensation benefits under 38 U.S.C. § 1151 for loss of use of his right arm which he contends resulted from cervical spine fusion surgery performed at a non-VA facility in April 2014. He described the post-surgery problem as loss of use of the right arm. He reported that he could not lift his right arm, and he could not brush his teeth or comb his hair using his right arm. He contended that he was not told pre-surgery that loss of use of the arm was a possible result of the cervical fusion surgery. The medical evidence shows that the Veteran had right upper extremity (RUE) weakness, tingling, and paresthesia noted in April 2014, before surgery, as well as problems with dropping objects. An early April 2014 private medical record noted the he had been referred by VA neurosurgery for persistent RUE numbness, weakness, paresthesias, and tingling. He dropped items, had difficulty utilizing a pen, and the condition had not improved but instead continued to worsen. The private record also noted that the Veteran was counseled on the surgical procedure to be performed (anterior cervical discectomy and fusion with instrumentation), including risks and benefits, limitations, and potential complications of the procedure. It was noted that he understood and accepted all the risks, including but not limited to infection, bleeding, nerve damage, paralysis, ongoing numbness or tingling, worsening of the condition, need for further surgery, spinal fluid leak, unforeseen complications and complications of anesthesia such as stroke, heart attack, coma, or death. The April 2014 surgical report reflected that all findings, the nature of the problem, alternative therapy, surgical and nonsurgical options, risks, benefits, limitations, and potential complications associated with the surgery were all discussed with the Veteran preoperatively, and he requested to proceed with the surgery in hopes of helping his condition. VA treatment records stated in mid-April 2014 “authorized surgery for cervical spine stenosis and cervical spondylosis. Plan:ACMDFC4-6 with instrumentation.” A May 28, 2014, post-op treatment note indicated that the Veteran was “great for a total of 4 days” after surgery, then on the 5th day “after sleeping abnormally on his arm it became dysfunctional and has not worked well since that time.” A July 7, 2014 VA neurosurgery note described paralysis of the deltoid as a “known, not infrequent complication of C4-5 anterior cervical fusion.” A July 30, 2014, VA neurologic consultation noted electrodiagnostic findings of “chronic denervation (greater than one year) in all C5-T1 muscles, with what appears to be active denervation of C5 innervated muscles supplied by the lateral and posterior cords of the brachial plexus. Given the sparing of sensory potentials supplied by the lateral and posterior cords, this is more suggestive of a secondary injury (possibly related to edema given the delayed time course) to the C5 spinal nerve root than a brachial plexopathy Superimposed upon this process appears to be a moderate entrapment of the right median nerve at the carpal ligament.” A February 2020 VA opinion report indicated that the Veteran had additional disability after the surgery, which was further weakness in the RUE, as well as worsening cervical myelopathy, possibly related to cervical cord edema. The clinician opined that the additional disability was foreseeable, particularly as it was obvious that the neurosurgical staff noted this prior to the surgery, and it was the type of risk that a reasonable health care provider would have discussed or disclosed in informed consent. This is a known risk of the surgery performed and the clinical records show that it was listed as a risk. The clinician opined that, based on the facts of this case and available information specifically found in the April 2014 operative report, the opinion rendered was without resorting to speculation as this information was within the scope of general medical knowledge about cervical injuries. The examiner indicated that there was adequate information in the records to make this determination. Based on the above, the evidence weighs against the claim for compensation under 38 U.S.C. § 1151 for loss of use of the right arm due to the April 2014 surgery. To this end, while the record indicates that the Veteran experienced additional disability (worse right arm weakness and worse cervical myelopathy), the evidence does not show that the proximate cause of the worsened right arm weakness and cervical myelopathy was an event not reasonably foreseeable. Importantly, the VA clinician opined that there was no current disability caused by VA treatment that was due to an event not reasonably foreseeable, as the additional disability present after the surgery was reasonably foreseeable. Specifically, nerve damage, paralysis, ongoing numbness or tingling, and worsening of the condition were noted in the informed consent as among the foreseeable risks. The Veteran was informed of these and other risks and he decided to proceed with the surgery. In sum, the additional disability was reasonably foreseeable. The Board notes that a copy of the full informed consent form signed by the Veteran in April 2014 is not in the claim folder; however, early April and day of surgery medical records show that he was fully informed of the risks, including nerve damage, paralysis, ongoing numbness or tingling, and worsening of the condition, and that he decided, fully informed, to proceed with the surgery. In light of the uncontroverted medical evidence discussed above that establishes that the worsening of the RUE weakness and cervical myelopathy were known, foreseeable risks of this surgery, and as such, risks that would have been and were identified in the informed consent process, and were noted in the early and day of surgery non-VA treatment and surgical records, additional action to obtain a copy of the April 2014 full signed consent form is not necessary prior to adjudication. As noted above, the Court held in Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), that additional disability that was unforeseeable that results from surgery in a non-VA facility might provide a basis for a grant of entitlement to 38 U.S.C. § 1151 benefits on the basis of negligent referral by VA. The February 2020 VA examiner reviewed the Veteran’s treatment records and found there was additional disability after the surgery; however, the examiner also opined that the additional disability (worsened RUE weakness and cervical myelopathy) did not result from an event that could not have reasonably been foreseen by a reasonable healthcare provider since these are ordinary known risks of the surgery performed and would be disclosed in the informed consent. While the examiner noted that the informed consent was not of record, and therefore the examiner could not provide an opinion in this regard, the Board notes that there is an informed consent of record, and the examiner indicated that the additional disabilities that developed were known risks. To the extent the statements from the Veteran suggest there was fault or negligence in on VA’s part in referring him for the surgery performed in April 2014, he is competent to relate his symptoms and what he was told by a medical professional. However, his statements are outweighed by the reasoned, comprehensive and neutral medical opinion evidence contained in the February 2020 VA medical opinion that concluded the Veteran’s additional disabilities were foreseeable risks of the surgery. The Veteran has not alleged that VA was negligent in referring him for surgery and he has provided no competent medical evidence to corroborate his belief and he lacks the requisite medical knowledge and expertise to opine whether the surgical outcome reflects the product of negligence or a foreseeable outcome. Therefore, the Veteran’s own medical opinion has less probative value than that from the medical opinions. The Board does not have jurisdiction over any claim the Veteran may have against the provider of the April 2014 cervical fusion surgery and makes no finding in that regard. Any argument that the surgery was performed by a VA employee (and as a VA employee) at the time of the surgery is unsupported. As the elements of a claim for compensation under 38 U.S.C. § 1151 have not been met, the appeal is denied. There is no reasonable doubt to be resolved in this case. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.