Citation Nr: 21024903 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 09-48 296 DATE: April 26, 2021 ORDER Entitlement to compensation benefits for VA medical care under 38 U.S.C. § 1151 for a back disorder is denied. FINDING OF FACT Additional disability affecting the back was not a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a back disorder are not met. 38 U.S.C. §§ 1110, 1131, 1151, 5107; 38 C.F.R. §§ 3.102, 3.358, 3.361, 17.32(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1971 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2020. The claim was remanded for the RO to obtain an addendum VA opinion. In February 2021, an addendum opinion was submitted. Thus, the Board finds that the RO substantially complied with the December 2020 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for a back disorder. Specifically, he argued loose donor bones have resulted in misalignment and pain down his legs. 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). Turning to the evidence of record, in September 2003, the Veteran underwent a L5 bilateral laminectomy and foraminotomy/Gill procedure and arthrodesis L4, L5, & S1 with allograft. The operative report states that, “[t]he posterior elements of L4,5, and S1 bone was drilled with Midas for allograft and fibular allograft with [patient’s]own removed bone pieces and placed on both sides of L4 to S1.”The August 2003 signed informed consent described the surgery, in relevant parts, as fusion using the Veteran’s own bones and allografts bones. The listed complications included: bleeding, infection, new pain, need for future surgery, increased loss of motor function, cerebral spinal fluid leak, death, failure of fusion, and bowel and or bladder dysfunction. In December 2006 the Veteran complained of chronic low back pain; however, he refused surgery. The plan was to address medical management. In a June 2007 statement the Veteran stated he had surgery in 2003. The surgeon used bone from a cadaver to keep two back vertebras in alignment. One of the bones became loose and crossed over to the spine resulting in pain. The Veteran added that he was provided with a support belt and two electric belts in order to stimulate growth of the donor bone. He was provided medication to control his pain; however, the other donor bone became loose. The Veteran indicated that due to the location of donor bones, he experiences pain down both legs In August 2016, a VA examiner, Dr. L.B.T. stated that he was “not very clear on what [the VA] was looking for in my review.” Nonetheless, Dr. L.B.T. noted that the Veteran’s September 2003 procedure involved the use of allograft and autograft bones. Dr. L.B.T. raised questions about the standard of care the Veteran received during the September 2003 procedure but did not arrive at any firm conclusions. In September 2017 VA treatment records, the Veteran reported he is a former smoker, as he quit in 2014. An August 2020 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner noted that in September 2003 the Veteran underwent L5-S1 bilateral laminectomy and foraminotomy/Gill procedure, arthrodesis L4, L5, and S1 with allograft. The examiner specifically noted that the Veteran had allograft and that the Veteran’s own bone pieces were not used during the surgery. It was opined the Veteran’s September 2003 surgery resulted in an additional disability. Namely, that but for the September 2003 surgery, the Veteran would not have developed failed fusion of his lumbar vertebrae. The examiner opined that it was less likely than not that the Veteran’s failed fusion was proximately due to any fault on VA’s part and that VA providers did not fail to exercise the degree of care that would be expected of a reasonable health care provider or that VA furnished the care or treatment without informed consent. It was reasoned that failure of vertebral fusion after a lumbar procedure is a known and common risk of the procedure, regardless of technique or expertise used during the procedure. The examiner addressed the August 2016 opinion provided by Dr. L.B.T. regarding whether the proper standard of care was followed. The examiner indicated that Dr. L.B.T. incorrectly noted that the Veteran’s own bones were used during the September 2003 procedure. The examiner again explained that the Veteran’s September 2003 procedure entailed the use of allograft bone and not the Veteran’s own bones. In a February 2021 addendum to the August 2020 VA examination, the examiner opined it is at least as likely as not that the failed lumbar fusion was caused by the VA treatment; however, there was no additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; no additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; and no failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. It was reasoned, the Informed Consent signed by the Veteran prior to the September 2003 Lumbar procedure “includes a handwritten note, difficult to read, that indicates that “own” bones may be used OR “allograft bones” may be used.” The examiner noted, The use of allograft and autograft combination of tissues in a lumbar fusion procedure, if that had occurred, is still well established as a useful process to promote bone growth and stability in spinal procedures. In fact, using autografts can speed the fusion process as the body recognizes its own tissue and immediately begins using it. Using allografts, properly prepared for the process, alone or in combination with autografts for lumbar spinal procedures, is also acceptable as a scaffold for fusion to build upon. Therefore, while I do not agree that the record supports that Veteran had allografts and autografts during the 9/2003 procedure, the result is the same regardless: Veteran’s failed lumbar fusion, with or without autografts, was not due to any negligence or carelessness or lack of skill on the part of VA personnel. (Allografts alone OR Allografts plus autografts both being acceptable treatment options to promote lumbar fusion.) Addressing the Board remand directives, the examiner opined the it is less likely than not that proximate cause of the Veteran’s additional back disorder (identified as failed fusion of his lumbar vertebrae) was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA during the September 2003 procedure. It was reasoned, VA providers tried conservative measures without relief for Veteran. Risks and benefits of the lumbar procedure were reviewed with Veteran prior to procedure, including the risk of failed fusion. The GILL procedure was selected, a procedure without instrumentation to minimize the surgical trauma. The GILL procedure, as acknowledged in previous Medical Opinions, is an acceptable procedure, within the standard of care for Veteran’s condition. The procedure was accomplished 9/2003 without immediate complications: L5 bil laminectomy with foraminotomy/ Gill procedure and Arthrodesis L4, L5, S1 with allograft. [The] Veteran initially did well, but imaging confirmed failure of fusion of the lumbar segments. VA providers managed Veteran’s lumbar condition appropriately, both conservatively and operatively, with unfortunate outcome developing regardless of the proper care. The examiner also opined it is at least as likely as not that the Veteran’s additional back disorder (identified as failed fusion of his lumbar vertebrae), was reasonably foreseeable as an ordinary risk of the September 2003 surgery that would be disclosed in connection with the informed consent. It was reasoned, failed fusion is a known risk of the September 2003 lumbar procedure, which was noted twice on the Informed Consent signed by Veteran prior to the procedure. It was noted, the Neurosurgeon reviewed risks with Veteran the day of the lumbar procedure and documented that no guarantees had been offered. Furthermore, The Veteran continued to smoke up until and after the lumbar procedure despite advice to discontinue. Failure of lumbar fusion is much higher in those who smoke, so Veteran’s failed fusion [is] foreseeable as [is] a possible common outcome. It should be noted that failure of fusion is a known risk whether allograft, autograft or combinations of bone grafts employed in the lumbar procedure. Therefore, use of autografts in addition to the allografts would make no clinically significant difference to the known risk of possible failed fusion. Failed fusion is a known risk, included in the Informed Consent discussion, regardless of the bone grafts used.) After a review of all of the evidence, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for a back disorder are not met. While the Veteran has asserted that misalignment and back pain is the result of the September 2003 failed lumbar fusion, the medical evidence has demonstrated that although the failed lumbar fusion was caused by VA treatment, it was not the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; it was reasonably foreseeable; and VA did not fail to timely diagnose or properly treat the back disorder. In this regard, the Board finds the February 2021 VA opinion probative. In providing a negative opinion, the examiner noted failed fusion is a known risk of the September 2003 lumbar procedure. Furthermore, the Veteran’s September 2003 signed informed consent form specifically identifies failure of fusion as a possible complication. The February 2021 VA examiner noted smoking increases the risk of failed fusion and the Veteran was a smoker during the procedure. Notably, in September 2017 VA treatment records, the Veteran reported he quit smoking in 2014. Furthermore, the competent medical evidence, specifically the February 2021 VA examiner, reviewed the record, to include the past VA examinations, and reconciled inadequacies such as whether the use of allografts or autografts support a claim under 38 U.S.C. § 1151. Specifically, the examiner found “use of autografts in addition to the allografts would make no clinically significant difference to the known risk of possible failed fusion.” The examiner provided an adequate rationale to support opining it is less likely than not that the proximate cause of the Veteran’s additional back disorder (identified as failed fusion of his lumbar vertebrae) was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA during the September 2003 procedure. Additionally, the examiner opined it is at least as likely as not that the Veteran’s additional back disorder was reasonably foreseeable as an ordinary risk of the September 2003 surgery that would be disclosed in connection with the informed consent. Again, the examiner noted failed fusion is a known risk of the September 2003 lumbar procedure. Also, VA providers tried conservative measures without relief for Veteran; the informed consent identified failed fusion as a complication, and the record demonstrates refusal for back surgery as demonstrated in December 2006. There are no persuasive medical opinions that purports to establish that any additional disability was a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. Rather, the persuasive medical evidence of record suggests otherwise. Furthermore, while the Veteran is competent to report the pain he experiences, he is not competent to provide opinions on the etiology of his back disorder. The Board finds that these matters are medical in nature and require medical knowledge to resolve. Therefore, the Veteran’s opinion as to the standard of care he received is not competent evidence under the circumstances of this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, a preponderance of the evidence is against a finding that the additional back disability, following a September 2003 back procedure was either the proximate result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, or an event not reasonably foreseeable. Accordingly, compensation under 38 U.S.C. § 1151 for additional disability as a result of a September 2003 back procedure must be denied. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.