Citation Nr: 21021658 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 12-33 523A DATE: April 13, 2021 ORDER Entitlement to benefits pursuant to 38 U.S.C. § 1151 for residuals of cervical fusion C6-C7, to include C5-C6 cervical spine stenosis and radiculopathy in both upper extremities, is denied. REMANDED An initial rating in excess of 10 percent prior to November18, 2011 and 30 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 31, 2012 is remanded. FINDINGS OF FACT 1. The Veteran’s residuals of cervical fusion C6-C7 are not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and are not the result of an event that was not reasonably foreseeable. 2. Cervical stenosis is not a condition included in the list of known risks and side effects on the February 2011 consent form signed by the Veteran. 3. A reasonable person informed of the risk of cervical stenosis would still have consented to the cervical fusion C6-7 surgery. CONCLUSION OF LAW 1. The criteria for entitlement to benefits pursuant to 38 U.S.C. § 1151 for residuals of cervical fusion C6-C7, to include C5-C6 cervical spine stenosis and radiculopathy in both upper extremities, have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Marine Corps from January 1987 to January 1993. In an October 2019 decision, the Board of Veteran’s Appeals (Board) denied the Veteran’s claims for an initial rating in excess of 10 percent prior to November 18, 2011, and 30 percent thereafter, for PTSD and for entitlement to benefits pursuant to 38 U.S.C. § 1151 for residuals of cervical fusion C6-C7. In the same decision the Board found that a June 2019 award of TDIU was a full grant of the benefit sought on appeal and dismissed the issue of entitlement to a TDIU. In October 2020, the Court of Appeals for Veteran’s (Court) claims granted a joint motion for partial remand and vacated each of the above decisions. In compliance with the Court’s order, the Board will readjudicate the Veteran’s claim for entitlement to benefits pursuant to 38 U.S.C. § 1151 for residuals of cervical fusion C6-C7, with specific discussion of whether the Veteran’s currently diagnosed C5-C6 cervical stenosis was encompassed by a February 2011 informed consent form. The Veteran’s claim for an increased rating for PTSD, and the intertwined issue of entitlement to a TDIU prior to January 31, 2012, will be addressed in the remand section. 1. Entitlement to benefits pursuant to 38 U.S.C. § 1151 for residuals of cervical fusion C6-7, to include C5-6 cervical spine stenosis and radiculopathy in both upper extremities, The Veteran is seeking benefits for residuals of a cervical fusion C6-7 performed by VA staff in February 2011. The Veteran alleges that the surgery was performed carelessly, negligently, or without the proper skill and that this either caused or aggravated the Veteran’s current condition. In the alternative, the Veteran alleges that he was not warned of the potential risks of the surgery and his consent was therefore not informed consent as a matter of law. Law Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. A disability is a qualifying additional disability if the disability was not the result of the Veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility. Further, the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2018). In Viegas v. Shinseki, the Federal Circuit noted that Section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a “qualifying additional disability” that was not the result of his own “willful misconduct.” 38 U.S.C. § 1151(a). Second, that disability must have been “caused by hospital care, medical or surgical treatment, or examination furnished the Veteran” by VA or in a VA facility. Finally, the proximate cause of the Veteran’s disability must be “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part” of VA, or “an event not reasonably foreseeable.” See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151(a)(1)(A), (a)(1)(B). Thus, Section 1151 contains two causation elements-a Veteran’s disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event. In determining whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran’s condition after care or treatment is rendered. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran’s additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran’s additional disability, it must be shown that the hospital care or medical or surgical 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 or medical or surgical treatment without the Veteran’s informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under this 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, at 107 (2011). Such an assessment is a factual one for the Board to make in the first instance. Id. (citing Roberts v. Shinseki, 23 Vet. App. 416, at 423). 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. 38 C.F.R. § 3.361(d)(2). Evidence In February 2011, the Veteran underwent surgery on his C6-C7 cervical vertebrae. Before the February 2011 surgery, the Veteran’s medical records show that he reported pain, numbness, and radiculopathy-type symptoms. (See e.g. January 2003, May 2007, July 2010 treatment records.) A July 2010 MRI showed multilevel spondylitic changes, felt to be most significant at C6-C7. A September 2010 neurology consult identified history of neck pain radiating into bilat arms and hands. The Veteran’s records also show that since his surgery he continued to have trouble with his cervical range of motion, his neck feeling stuck, and numbness. (See e.g. July 2012 treatment record, March 2014 lay statement.) Before the February 2011 the surgery was performed, the Veteran signed a form titled “Consent for Clinical Treatment/Procedure” (consent form). The record contains two copies of this form, one from the morning before the day of surgery and one from the morning of the day of surgery. The two contain identical information except that there is an additional supervising practitioner listed on the earlier version of the form. The first section of the consent form was titled “identification.” It listed the Veteran as the patient, confirmed that he had decision making capacity, listed “Spine, anterior cervical decompression and fusion (1 or mutli_level)” (cervical fusion) as the procedure being performed, listed “cervical spine C6-C7” as the location of the planned cervical fusion, and listed the doctor obtaining the consent, the supervising attending physician, and a resident who would be performing or supervising the procedure. The second section of the consent form was titled “information about the treatment/procedure. It listed the reason for the procedure as pain and discomfort caused by a damaged disc or pinched nerve, briefly described the procedure to be performed, listed the potential benefits of the procedure (including pain relief and stabilization of the spine), and listed the alternatives to the procedure (including physiotherapy, cervical collar, posterior cervical decompression, and observation). Under the heading of “known risks and side effects of the treatment/procedure” the following list was included: Known risks of this treatment include, but are not limited to: Difficulty speaking from injury to the recurrent laryngeal nerve (right side approach). Injury to the thoracic duct (left side approach to the lower spine). Inadequate decompression of the spinal cord or of the nerve roots. Neurologic injury (paralysis) due to spinal cord manipulation or contusion. Tear of the dura mater with secondary cerebrospinal fluid leak. Difficulty swallowing from traction on the esophagus. Difficulty swallowing from compression of the esophagus. Fistulae from damage to the trachea. Weakness of the sternocleidomastoid muscle from traction on the 11th nerve. Stroke due to manipulation of the carotid artery. Paralysis or pain from nerve root damage. Infection of the graft or hardware. Poor fusion of the graft. Bleeding. Postoperative pain. Headaches. Rigid neck. Displacement of the graft or plate or screws. Homer syndrome from injury to the sympathetic chain (rare). Inadvertent operation at wrong spinal level. The consent form then continued to discuss the procedure and risks of anesthesia, the procedure and risks of using blood products, and privacy concerns. The third and final section of the consent form was titled “signatures.” It contained the signature of the provider who obtained the Veteran’s informed consent and the signature of the Veteran, each attesting to a set of statements. The provider attested to the following: All relevant aspects of the treatment and its alternatives (including no treatment) have been discussed with the patient (or surrogate) in language that s/he could understand. This discussion included the nature, indications, benefits, risks, side effects, and likelihood of success of each alternative. The patient (or surrogate) demonstrated comprehension of the discussion. I have given the patient (or surrogate) an opportunity to ask questions. I did not use threats, inducements, misleading information, or make any attempt to coerce the patient/surrogate to consent to this treatment. I have offered the patient (or surrogate) the opportunity to review a printed copy of the consent form. The Veteran attested to the following: Someone has explained this treatment/procedure and what it is for. Someone has explained how this treatment/procedure could help me and things that could go wrong. Someone has told me about other treatments or procedures that might be done instead, and what would happen if I have no treatment/procedure. Someone has answered all my questions. I know that I may refuse or change my mind about having this treatment/procedure. If 1 do refuse or change my mind, I will not lose my health care or any other VA benefits. I have been offered the opportunity to read the consent form. I choose to have this treatment/procedure. These statements and signatures concluded the February 2011 consent form. The record contains conflicting evidence as to whether the Veteran has an additional cervical spine disability compared to his condition before the February 2011 cervical fusion surgery, and if so, whether this was caused or worsened by his February 2011 surgery. An April 2012 VA examiner opined that there were no additional disabilities of the cervical spine or upper extremities due to the Veteran’s February 2011 surgery. However, a March 2014 CT scan indicated there may have been an incomplete or partial fusion at C6-C7. In July 2018, VA provided an examination of the Veteran’s cervical spine. This examination was arranged to evaluate the Veteran’s claim that the cervical spine condition which led to his February 2011 cervical fusion was directly related to an in-service injury, event, or disease. The examiner was therefore not asked and did not opine on the issue of whether the Veteran’s February 2011 cervical fusion was performed with proper care or contributed to any further disability. The July 2018 examiner did diagnose degenerative disc disease, status post fusion C6-C7. The July 2018 examiner noted reduced strength (4/5) bilaterally on all tested movement of the elbows, wrists, and fingers, as well as hypoactive deep tendon reflexes at the bilateral biceps, triceps, and brachioradialis. Sensation to light touch was absent at the bilateral hand/fingers, corresponding to the nerves in the C6-C8 vertebrae. There was no radicular pain on examination but there were mild paresthesias/dysthesias of the bilateral upper extremities and mild numbness of the upper right extremity. Numbness of the upper left extremity was neither indicated nor denied on the examination form. The July 2018 examiner diagnosed mild radiculopathy of the bilateral upper extremities, involving the upper radicular nerve group (C5-C6). There was no discussion of electromyograph/nerve conduction studies (EMG/NCS) testing. The July 2018 examiner opined that the Veteran’s neck condition was less likely than not connected to the Veteran’s in-service injury and the etiology was multifactorial, the result of occupational wear, tear, and strain, as well as the natural aging process. An October 2018 VA examiner reviewed the Veteran’s medical records including the conflicting evidence noted above. The October 2018 examiner explained that after cervical fusion, such as the Veteran’s February 2011 surgery, bones can take several months to heal (fuse). This healing is evaluated through sequential imaging studies. In this case, an April 2012 MRI and August 2012 CT scan showed partial fusion which could be indicative of a failed cervical fusion. Additionally, the Veteran complained of neck pain with “locking” and numbness in both upper extremities extending from his elbows into all his fingers, which also could be indicative of a failed cervical fusion. To evaluate this possibility, the Veteran underwent several neurosurgical consults along with subsequent CT imaging studies which showed a solid fusion at the C6-7 level but showed herniation/stenosis at adjacent level C5-6. Although the Veteran requested further surgery to address these symptoms, this was not recommended by any of the four providers he consulted because his reported symptoms did not coincide with the cervical vertebrae that had observable abnormalities. Previous EMG/NCS, including post-surgery in April 2013, showed his upper extremities were essentially normal with no evidence of cervical radiculopathy. The October 2018 examiner stated that the medical literature lists degenerative changes at adjacent levels as a known risk of cervical fusion surgery and the Veteran now has C5-C6 stenosis and herniation which are likely a result of his February 2011 C6-C7 cervical fusion surgery. The October 2018 examiner opined that the C5-C6 stenosis and herniation were not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during surgery. The rationale was that, as noted above, degenerative changes at adjacent levels are a known risk of cervical fusion surgery. For the same reason, the October 2018 examiner opined that developing C5-C6 stenosis and herniation was not an “event not reasonabl[y] foreseeable.” The examiner further stated that the risk of developing degenerative disc disease at levels adjacent to the fusion is a potential risk factor that is discussed when surgical consent is obtained and there is “no evidence whatsoever, of failure to exercise any precautions and/or degree of care that would be expected of a reasonable health care provider.” Analysis The Veteran has broadly claimed both that his symptoms that existed before the February 2011 cervical fusion but have worsened since then, and his more recently diagnosed stenosis and herniation at C5-C6, are the result of his February 2011 surgery. Other than the Veteran’s lay assertions, there is no evidence of record indicating that the February 2011 contributed to an increase in the Veteran’s preexisting symptoms. While the Veteran is competent to report a subjective increase in his experience of symptoms, he is not competent to opine on the cause of this increase in symptoms. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the Veteran’s medical treatment providers and the VA examiners of July 2018 and October 2018, who collectively provided no evidence that VA failed to diagnose or treat the Veteran’s condition. On the contrary, the February 2011 cervical fusion was a reasonable, if ultimately unsuccessful, attempt to treat the Veteran’s diagnosed condition and claimed symptoms. The Board therefore finds that the Veteran’s preexisting symptoms, such as neck and upper extremity pain, numbness, and radiculopathy-type symptoms are the result of the natural progression of the Veteran’s condition and neither the result of the February 2011 cervical fusion or of VA’s failure to properly identify and treat the Veteran’s condition. Regarding the radiculopathy-like symptoms, the Board acknowledges that the July 2018 examiner diagnosed actual radiculopathy. However, the Board finds the October 2018 examiner’s opinion that the Veteran did not have radiculopathy to be more probative because the October 2018 examiner cited post-surgery EMG/NCS results and the July 2018 examiner did not refer to any objective testing. Based on the October 2018 examiner’s opinion, which cited relevant medical literature and several imaging studies, the Board finds that the Veteran has stenosis and herniation at C5-C6, which is a qualifying additional disability compared to the Veteran’s status before his February 2011 cervical fusion. Also based on the October 2018 examiner’s opinion, the Board finds that this additional disability was the result of the February 2011 cervical fusion surgery. However, merely showing an additional disability that was caused by VA treatment is not sufficient to grant benefits under 38 U.S.C. § 1151. In order to justify a grant of benefits under 38 U.S.C. § 1151, the proximate cause of the Veteran’s disability must be “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part” of VA, or “an event not reasonably foreseeable.” See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151(a)(1)(A), (a)(1)(B). Because, as the October 2018 examiner stated, degenerative changes such as stenosis and herniation at adjacent levels are a known risk of cervical fusion surgery, and are specifically the type of risk that is discussed when surgical consent is obtained, the Veteran’s additional disability is not the result of an event not reasonable foreseeable. The October 2018 examiner also opined, after a thorough review of the Veteran’s medical records and without contradiction by any other medical examiner or provider of record, that there was “no evidence whatsoever, of failure to exercise any precautions and/or degree of care that would be expected of a reasonable health care provider” in relation to the Veteran’s February 2011 cervical fusion surgery. The Board finds the October 2018 examiner’s opinion to be probative as to the level of care and competence provided by VA staff during and after the Veteran’s February 2011 cervical fusion surgery. However, the Veteran is competent to raise the issue of lack of informed consent, and he has stated that he was not informed of the risk of degenerative changes at adjacent levels before he agreed to proceed with the surgery. The February 2011 consent form does not explicitly list degenerative changes at adjacent levels as a risk of the Veteran’s planned surgery. While it indicates that the Veteran was given the opportunity to ask questions, there is no indication that he would have had reason to ask about this or that there were additional risks explained to him outside of those included on the form. The Board finds the Veteran’s statement credible and concludes that he was not explicitly warned that degenerative changes at adjacent levels was a risk of his cervical fusion surgery. However, the Board must still determine whether a reasonable person, properly informed of the risk of degenerative changes at adjacent levels, would still have proceeded with the cervical fusion surgery. In making this determination, the Board has considered the severity of the Veteran’s pre-surgery symptoms, which included pain, numbness, and radiculopathy-type symptoms of the neck and upper extremities, and the severity of the symptoms associated with the Veteran’s cervical stenosis and herniation. Given that additional degenerative changes would likely cause symptoms similar to those the Veteran already had, and that a successful surgery would have the potential to reduce or eliminate the Veteran’s original symptoms, the risk does not appear to outweigh the potential benefit of the surgery. The Board has also considered those risks that were explicitly outlined in the February 2011 consent form, which included rigid neck, neurologic injury, and paralysis or pain from nerve root damage. These are not necessarily the most severe of the listed risks, but they cover symptoms very similar to those potentially caused by degenerative changes at adjacent levels, and the Board notes that the Veteran did not consider those risks, nor potentially more severe risks such as a stroke, to outweigh the benefits of the surgery. The Board therefore concludes that a reasonable person, properly informed of the risk of degenerative changes at adjacent levels, would still have proceeded with the cervical fusion surgery. The Board further finds that the lack of explicitly informed consent on this issue was a minor deviation from the requirements of 38 C.F.R. § 17.32 which was immaterial under the circumstances of this case. See McNair, supra, at 107. For the above reasons, while the Board finds that the Veteran does have an additional disability as the result of his February 2011 cervical fusion surgery, the Board also concludes that this was neither the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, nor the result of an event not foreseeable. The Veteran’s claim for benefits under 38 U.S.C. § 1151 for residuals of cervical fusion at C6-C7 is therefore denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent prior to November 18, 2011 and 30 percent thereafter, for PTSD Evidence indicates that there may be outstanding relevant VA treatment records. In a November 2011 statement, the Veteran reported that he was treated at the Fort Harrison VA Medical Center since March 2011. In an April 2012 statement, the Veteran sought records from the Fort Harrison VA Medical Center from January 2011 through April 2012. The earliest Fort Harrison VA Medical Center record is from September 25, 2011. Thus, VA treatment records from January to September 2011 from the Fort Harrison VA Medical Center are outstanding. In December 2014, the Veteran sought records from the Southern Arizona VA Health Care System, specifically from the Tuscon VA Medical Center and Yuma Community Based Outpatient Clinic (CBOC) from January 2014 to April 2015 (sic). The earliest Southern Arizona VA Health Care System record is from March 2014. Thus, VA treatment records from January and February 2014 from the Southern Arizona VA Health Care System are outstanding. In order to fulfill VA’s duty to assist the Veteran and comply with the October 2020 order of the Court, a remand is necessary to obtain these outstanding records. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 31, 2012 Finally, because a decision on the remanded issue of entitlement to an increased rating for PTSD could significantly impact a decision on the issue of entitilement to a TDIU prior to January 31, 2012, the issues are inextricably intertwined. A remand of the claims for a TDIU prior to January 31, 2012 is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Fort Harrison VA Medical Center for the period from January 1, 2011 to September 24, 2011. 2. Obtain the Veteran’s VA treatment records from the Southern Arizona VA Health Care System, specifically including the Tucson VA Medical Center and the Yuma CBOC, for the period from January 1, 2014 to February 28, 2014. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and   provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.