Citation Nr: 21024671 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 10-18 400 DATE: April 23, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a neck disorder claimed as due to VA medical treatment in June 2007 is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1963 to September 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by a VA Regional Office (RO). By way of background, this case was previously before the Board in June 2016 wherein the Board denied the benefits sought on appeal. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2017, the Court issued a Memorandum Decision that vacated the Board’s decision and remanded the case for readjudication in compliance with directives specified. In August 2018, the Board remanded the claim for additional development. Most recently, this case was before the Board in July 2020 and again the claim was remanded. The Board requested that the RO obtain the Veteran’s informed consent form and/or any related documentation for a June 2007 VA chiropractic manipulative treatment. In addition, the Board requested that the Veteran be afforded a new VA medical opinion addressing whether the Veteran has an additional neck disorder that was caused or aggravated by VA medical treatment in June 2007. As will be discussed below, the resulting opinion was not responsive to the Board's directive and, therefore, further remand is required. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to compensation under 38 U.S.C. § 1151 for a neck disorder claimed is remanded. The Veteran asserts that he has an additional neck disability due to a June 2007 VA chiropractic manipulative treatment. In response to the Board’s July 2020 remand, a new VA medical opinion was obtained in January 2021. The examiner opined that it is less likely than not that the Veteran has an additional neck disorder that was caused or aggravated by the VA medical treatment. The examiner also opined that it is less likely than not that the “proximate cause of the Veteran’s additional neck disorder, identified as retrolisthesis, was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA during the June 2007 VA chiropractic manipulative treatment”. As a rationale, the examiner stated “the Veteran is currently 77 years old and at the time of the event was 75. There is a significantly high prevalence of cervical spine osteoarthritis at this age”. The examiner concluded that it is less likely than not that the chiropractic treatment caused the cervical spine conditions of the Veteran. In addition, the examiner opined “that it [is] less likely than not that the Veteran’s additional neck disability, identified as retrolisthesis, was reasonably foreseeable as an ordinary risk” and is less likely than not that the chiropractic treatment caused the additional neck disability. As a rationale, the examiner once again stated “the Veteran is currently 77 years old and at the time of the event was 75. There is a significantly high prevalence of cervical spine osteoarthritis at this age”. A second VA medical opinion was obtained later in January 2021; however, no additional information was provided. The examiner appeared to agree with the opinions of the earlier January 2021 examiner by copying his predecessor’s opinion verbatim with no additional comments or remarks. At the outset, the Board notes that the Veteran was given proper notification of and provided informed consent for the June 2007 chiropractic treatment. The Board further notes that the chiropractic treatments are not the kind of medical care in which normally requires consent to be in writing. Informed consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b), such as in emergency situations. 38 C.F.R. § 3.361(d)(1). 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. 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. See McNair v. Shinseki, 25 Vet. App. 98 (2011). What is not clear however, is whether or not the Veteran has an additional disability under 38 U.S.C. § 1151. As such, the Board finds the record contains no adequate VA medical opinion, to include the January 2021 VA opinions, for adjudicative purposes. Therefore, although regretting the additional delay, a remand is again needed before the Board may proceed to consider the claim. In that regard, the January 2021 opinion is contradictory, in one place indicating the Veteran has no additional disability, and in another place in the opinion indicating the Veteran’s “additional disability of retrolisthesis, was less likely than not the result of VA treatment.” Whether there is additional disability is defined in the VA legal framework. There must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). 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 (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). As the opinions of record do not meet these requirements for whether an additional disability resulted from the June 2007 chiropractic treatment, the Board finds that a new opinion which contains a supporting rationale is needed before a decision may be rendered on the claim. Second, the rationale of the January 2021 examiner’s opinion did not discuss the Veteran’s lay statements, as requested in the remand order, to include addressing the Veteran’s January and December 2008 report that he began experiencing increased pain and restricted motion of the neck within a week of his final visit. See Stegall, 11 Vet. App. 268, 271 (1998). Third, the rationale was based on a factually inaccurate premise. The examiner’s sole rationale for all opinions provided was based on the age of the Veteran. Specifically, that he was “75 at time of procedure”. However, this is entirely inaccurate as the Veteran would have been roughly 63 years old at time of the 2007 VA chiropractic treatment not 75 years old. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). Lastly, the examiner’s opinion appears conclusory in nature as its sole explanation as to the cause of the Veteran’s retrolisthesis is that he is of advanced age. There is no discussion as to other known risk factors, including the Veteran’s own lay statements of a possible injury, nor discussion of the Veteran’s private chiropractic treatment from chiropractor, E.C. Therefore, the claim must be remanded for a new opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a mere conclusion by an examiner is insufficient to allow the Board to make a fully informed decision as to the probative value of the opinion). See also Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw “an unexplained conclusory opinion is entitled to no weight in a service-connection context”). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to address the following: (a) Whether the Veteran has an additional neck disorder, to include retrolisthesis, that was caused or aggravated by the VA medical treatment in June 2007. Evidence of additional disability should be demonstrated by comparing the Veteran’s condition immediately before and after the medical care in question. (b) If, and only if, an additional disability resulted, the clinician is asked to determine whether such disability was caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA during the June 2007 VA chiropractic manipulative treatment? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. The VA clinician should address the Veteran’s January and December 2008 report that he began experiencing increased pain and restricted motion of the neck within a week of his final visit. The clinician should also consider the Veteran’s September 2008 statement and a September 2009 report from chiropractor, E.C., which contain the Veteran’s reports of what occurred during the June 2007 VA treatment. (c) If, and only if, an additional disability resulted, the clinician is asked to determine whether it was a reasonably foreseeable result of the June 2007 chiropractic treatment; that is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment at issue? A complete rationale for all opinions must be provided. The examiner should address the findings of the October 2019 VA opinion and reconcile any diverging conclusions. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. (Continued on the next page)   2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.