Citation Nr: 21024362 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-29 366 DATE: April 22, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a back condition is granted. FINDING OF FACT Additional disabilities resulted after multiple back surgeries at a VA Medical Center (VAMC) that were not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a back condition have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.358, 3.361, 17.32(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Navy from March 1964 to March 1967. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the RO originally denied the claim for compensation under 38 U.S.C. § 1151. However, the August 2013 decision never became final; the claim remained on appeal because the Veteran continued to submit new and material evidence. The RO issued a rating decision in March 2014, but again this rating decision was not final. In July 2015, the RO issued a rating decision that still continued the denial of the Veteran’s claim. The Veteran initiated the appeal of this issue by filing a notice of disagreement (NOD) in August 2015. Therefore, the Board finds that there is no new and material evidence issue for it to address regarding reopening the claim. Entitlement to compensation under 38 U.S.C. § 1151 for a back condition. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance 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(a)(1). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). To establish that 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 proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's 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 veteran’s or, in appropriate cases, the veteran's representative'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. Consent may be express (i.e. given in orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 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. 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). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran is seeking compensation under 38 U.S.C. § 1151 for a back condition. The Veteran claims that in 2010, he underwent back fusion surgery at a VA Medical Center (VAMC). This surgery left him with severe and never ending acute pain in his rectum. He also developed numbness in his buttocks, sides of legs, and sides of feet. The Veteran had multiple surgeries afterwards to correct the issue, but his symptoms worsened. Soon, the Veteran’s lower extremities became paralyzed, and he was unable to urinate, defecate, and have an erection. The Veteran asserts that his symptoms were caused by his back surgeries performed at the VAMC. Currently, the Veteran must use a cane, walker, and/or wheelchair to get around. See October 2012 Statement in Support of Claim, February 2013 Statement in Support of Claim, February 2016 Statement in Support of Claim, and March 2021 Hearing Transcript. A May 2010 VA operation report revealed that the Veteran was diagnosed with fourth lumbar vertebra-fifth lumbar vertebra spondylosis with neural foraminal compression. The Veteran had an operation procedure performed called right fourth lumbar vertebra transforaminal lumbar interbody fusion. In a November 2011 VA operation report, it was noted that the Veteran did well until a few months after his initial surgery in May 2010 when he began having burning sensation in the buttocks, in the rectum, and down the bilateral lower extremities on the posterior aspect. This was equal in both legs, and it involved the plantar aspect of the feet. He was noted to have a constant fullness sensation in the rectum with a constant urge of having to have a bowel movement. His MRI revealed adjacent segment stenosis at L3-4 level, so the decision was made to take him to have left sided L3-4 hemilaminectomy with bilateral decompression for stenosis procedure performed. In an early March 2012 VA operation report, the surgeon reported that the Veteran was diagnosed with tethering of the spinal cord pre-operation. In the past 3 months, the Veteran’s burning sensation in the buttocks and rectum began to radiate to the lower posterior aspect of bilateral lower extremity. An MRI of the lumbar spine was done, which showed increased to moderate prominent stenosis of the thecal sac at L3-4 with moderate foraminal narrowing. The MRI also showed thalamic terminale lipoma extending from L5-S1 disk level. Therefore, the decision was made to take the Veteran to the operative room for untethering of the spinal cord. Shortly after his surgery in March, the Veteran had surgery again that same month. A March 2012 VA operation report revealed that the Veteran’s existing incontinence of urine and fecal worsened, and a new MRI was conducted. The MRI was suggestive of a fluid collection at the surgical site. A decision was made to take the Veteran to the operative room for exploration of the wound and surgical site. An August 2012 VA operation report revealed that the Veteran underwent surgery for T8 with a partial T7 and T9 laminectomy with intradural exploration and lysis of arachnoid adhesions. It was noted that the Veteran had a neurogenic bladder and had to manually disimpact feces from his rectum to evacuate stool. In November 2012, a VA medical opinion was obtained due to the contentions by the Veteran of numbness of the lower body due to his surgery of the back. The VA examiner explained that the Veteran had long standing low back pain with multilevel involvement that required repeated procedures. Prior to the first surgery in May 2010, the Veteran had already developed saddle anaesthesia and urinary and bowel urgency, which was the beginning of a neurogenic bowel and bladder. The Veteran’s first MRI was indicative of several spinal stenosis at L4-5 due to facet osteoarthritis and grade 1 degenerative spondylolisthesis with probable biomechanical instability. This level was surgically addressed with right-sided L4-L5 TLIF with pedicle screws, and the Veteran did well for some time. The Veteran’s symptoms progressed due to progression of multilevel disease requiring repeated surgical intervention. The Veteran underwent left-sided L3-L4 hemilaminectomy with bilateral decompression in 2011. In March 2012, the Veteran had an L5 laminectomy with untethering of the spinal cord. Then, the Veteran had to undergo a lumbar washout for removal of a blood clot, and he presented with persistent back pain. The Veteran’s final surgery was in August 2012. Post-surgery, the Veteran complained of numbness in the lower extremity. He had to manually stimulate a bowel movement and self-catheterize. He felt his urine control was worse. The VA examiner opined that the Veteran’s current symptoms of saddle anaesthesia and neurogenic bowel and bladder were a progression of the Veteran’s initial symptoms, prior to his first surgery, and were a progression of the cauda equina syndrome from lipoma at filum terminale. The VA examiner concluded that these symptoms were not the result of surgeries. These were known risks and side effects of such surgery and were clearly addressed in the informed consent, documented in vista imaging. Furthermore, the November 2012 VA examiner opined that the Veteran’s numbness of the lower body was not due to hospital care, medica or surgical treatment, or examination furnished to the Veteran. The proximate cause of the disability was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination. It was not an event reasonably foreseeable. In addition, the Veteran’s record of treatment for numbness of the lower body due to surgery of the back did not indicate any departure from accepted levels of medical care or the performance of professional duties expected of a reasonable health care provider. The Veteran was followed on a regular basis post-operatively and all the issues were addressed. The outcome of the procedure was a reasonably foreseeable event for this type of procedure with known risks well documented in the informed consent. In August 2013, VA obtained another medical opinion. The VA examiner opined that it was more likely that the numbness o the Veteran’s lower body due to surgery of the back was unrelated, caused by, or aggravated by VA medical treatment, rehab program, or participation in a compensated work therapy program activity. The VA examiner stated that after carefully reviewing the Veteran’s records, the examiner concluded that the Veteran’s worsening in his lumbar/spinal cord was the result of its gradual progression. There was documentation that the Veteran consented. In October 2013, the Veteran submitted a private medical opinion from Dr. J.N., dated September 2013. The private physician stated that the Veteran’s records were reviewed, and she opined that it was more likely than not that the Veteran’s symptoms were caused by or the result of his multiple back surgeries. The Veteran had been seeing the physician for several years on a regular basis. Dr. J.N. did not believe the Veteran’s symptoms were from the natural progression of his disease. The Veteran’s urinary retention started after his surgery in March 2012; he was required to self-catheterize ever since his surgery. The Veteran was able to have an erection before his third surgery, but not after. The Veteran’s numbness in the right midsection was more likely than not a result of his surgery in August 2012. The Veteran’s rectal pain became worse subsequent to his May 2010 surgery. He had some numbness of his buttocks prior to surgery but not the peristent severe rectal pain. The Veteran’s inability to defecate started after his surgery in March 2012. The Veteran currently needed to manually disimpact himself. This was more likely than not from his surgery. His numbness and weakness of legs started after his surgery in May 2010. In summary, the Veteran’s symptoms occurred too rapidly after his surgeries to be considered a “natural progression.” Given that there was no other obvious etiology, it was at least as likely as not that the Veteran’s problems were the result of nerve damage caused by his surgeries. Most certainly, the proximate cause of the Veteran’s resulting disabilities was not a foreseeable event. In August 2014, the Veteran submitted a private medical opinion from Dr. B. Dr. B. stated that he was furnished with the medical records from the Veteran, including the surgical report’s, Dr. J.N.’s reports, VA rating decision denial letter, and consent forms for the Veteran’s prior surgeries. The Veteran was generally able to function independently prior to his surgeries. In 2010, he experienced sudden onset saddle numbness and bilateral sciatica particularly on the right side. Additionally, the Veteran developed bowel and bladder dysfunction. He was diagnosed with L4-L5 spondylosis with neural foraminal compression for which he underwent surgery in the form of right fourth and fifth lumbar vertebrae transforaminal interbody fusion pedicle instrumentation on May 26, 2010. He did relatively well for a few months, then he began having burning sensation in the buttocks and rectal area that radiated to both legs and bottom of both feet. Along with this, he had urgency in bowel movement. An MRI showed adjacent segment stenosis at L3-L4. The second surgery was performed in November 2011 in the form of left sided L3-L4 hemilaminectomy with bilateral decompression for the stenosis. He failed to improve, and a subsequent MRI imaging study showed increased stenosis at L3-L4 with moderate foraminal narrowing. Additional finding of lipoma in the filum terminale was also noted. For this, he was taken to the operating room on March 2, 2012, and underwent untethering of the spinal cord and L5 laminectomy. The Veteran did not improve with persistent bowel and bladder dysfunction. A subsequent MRI study revealed fluid collection at the surgical site. Surgical intervention was again recommended, and the Veteran, for the 4th time, underwent surgery in the form of incision and drainage/washout of the old surgical site on March 16, 2012. Unfortunately, after all these surgical interventions, he failed to improve. He declined functionally and had to deal with bowel and bladder incontinence. His pain persisted along with numbness in both legs and feet. In view of this, the Veteran had further imaging study, but this time it involved the thoracic region. The thoracic MRI showed accumulation of CSF in the dorsal subarachnoid space at T8 level and a non-isolated arachnoid cyst also identified on the myelography. For this he underwent surgery for the 5th time on August 29, 2012 in the form of T8 with a partial T7 and T9 laminectomy with intradural exploration and lysis of arachnoid adhesions. The Veteran continued to be symptomatic with severe low back pain and sciatica, neurogenic bladder and bowel and bowel and erectile dysfunction with decline in activities of daily living. In summation based upon the above medical findings, the Veteran’s current medical impairments and disabilities related to his low back were not natural progressions of a disease. There were multiple new findings that were not seen in prior surgeries, including the development of filum terminale lipoma, thoracic arachnoid cyst, CSF accumulation, and etc. All this contributed to his persistent complaints of severe back pain along with bowel, bladder, and sexual dysfunction. It was at least likely as not that the disabilities listed above were caused by, the result of, or aggravated by his treatment at the VAMC. Although the initial surgery was to address an issue in his back (which is, not currently service-connected), the sequela of all the additional disabilities resulting from that initial and subsequent surgeries were the proximate cause of the problems that he was currently experiencing, none of which could be considered a reasonably expected outcome of any of the five surgeries. In July 2015, VA obtained another medical opinion. The VA examiner opined that the disability of the worsening of the lumbar spine stenosis and complications from the surgery (right side numbness, rectal pain, urinary issues, peripheral neuropathy of the lower extremities, and erectile dysfunction) was at least as likely as not (50 percent or greater probability) caused by or as a result of the VA treatment at issue. The Veteran did have issues with discomfort due to his spinal condition before his initial surgery in May 2010. Afterwards, the clinical course of the Veteran showed a worsening of his condition. Thus, causation was established. However, the Veteran’s symptoms and complications were less likely than not caused by or as a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The Veteran had significant issues with pre-existing spinal stenosis, which was the cause for the Veteran’s symptoms and need for some of the operations he had. Thus, the presence of the spinal stenosis and later problems it presented were beyond the control of the health care team. Other problems with adhesions and the tethering of the spinal cord were due to issues seen in the healing process. These conditions were also beyond the control of the treatment team. As such, all of these issues did not occur as a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The Veteran’s disability was less likely than not caused by or as a result of an event that could have reasonably been foreseen by a reasonable health care provider. While those situations might have been possible, there was no way to predict when they would have happened or necessarily in preventing them from happening. As such, the standard of medical care was such that the Veteran was informed of the possible issues that could occur with the operative procedure, and then worked with the health care team to address any problems that might arise. Moreover, the Veteran’s disability was less likely than not caused by or as a result of failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability. The VA treatment records demonstrate that the Veteran was seen and evaluated on several occasions for his back related complaints. This included imaging studies in order to determine the best course of action. These clinical records did not evidence that his condition was allowed to progress or deteriorate without the knowledge and intervention of the health care team. (Continued on the next page) Although the negative November 2012, August 2013, and July 2015 VA medical opinions give a detailed explanation of whether the Veteran’s surgeries at the VAMC and resulting symptoms rose to the level of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable, these VA medical opinions did not address the positive private September 2013 and August 2014 medical opinions. Therefore, the November 2012, August 2013, and July 2015 medical opinions are of little probative value. The positive private medical opinions of record provide a sufficient detailed explanation to support the conclusion that the Veteran’s problems were the result of nerve damage caused by his surgeries, which was not a foreseeable event. These positive opinions are probative in value and weigh in favor of the Veteran’s claim. Thus, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s symptoms from his back surgery were a proximate cause of the Veteran’s VA treatment that was unforeseeable. Therefore, the claim for entitlement to compensation under 38 U.S.C. § 1151 for a back condition must be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.