Citation Nr: 21027054 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-32 340 DATE: May 4, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability due to back surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1985 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim for compensation under 38 U.S.C. § 1151 for back surgery. In February 2015 the Veteran filed a notice of disagreement (NOD) as to his back surgery. In April 2017 the RO issued a statement of the case (SOC) and in June 2017 the Veteran timely filed a substantive appeal (via VA Form 9). In March 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for back surgery is remanded. Pursuant to 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was not the result of a veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701 (3)(A), and (2) the proximate cause of the disability was (a) 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 (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. In April 2013, the Veteran filed a claim for compensation under 38 U.S.C. § 1151 for additional disabilities to his lower back incurred because of a laminectomy performed in January 2011 and a transforaminal lumbar interbody fusion (TLIF) surgery performed in June 2013. In the June 2017 VA Form 9 the Veteran stated that his January 2011 surgery was performed negligently as the surgeon only worked on one side of his back instead of both sides. The Veteran also stated that if the June 2013 TLIF surgery had been performed earlier that his back problems would not be as severe. An October 2019 VA examiner opined that the Veteran's claimed disability of degenerative disc disease, thoracolumbar spine, to include permanent worsening due to inadequate treatment, is less likely than not (a) caused or became worse as a result of the VA treatment at issue, (b) resulted from carelessness, negligence, lack of skill, or similar incident of fault on the part of the attending VA personnel, (c) resulted from the attending VA personnel's failure to follow the appropriate standard of care or an event that could not have reasonably been foreseen by a reasonable healthcare provider, or (d) failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability which allowed the disease or disability to continue to progress. The VA examiner explained that the pre, intra, and post procedures including complications and risk factors associated with his surgeries were discussed and given in detail and no surgery is guaranteed to be a success. The VA examiner explained that many variables can contribute to reoccurring issues or worsening of symptoms post-surgery, including the Veteran's compliance with recovery recommendations, the body's reaction to major surgery, and manipulation. The October 2019 VA opinion is inadequate to decide the claim as the VA examiner's opinion does not specifically address the Veteran's contentions that the January 2011 surgeon should have worked on both sides of his back or whether the June 2013 TLIF surgery should have been performed earlier. Therefore, a remand is necessary to obtain an adequate opinion regarding the Veteran's claim of entitlement to compensation for back surgery under 38 C.F.R. § 1151. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, at the March 2021 Board hearing the Veteran testified that an implanted screw in the left side of his back is "hanging on by one thread." The Veteran stated that he experiences shooting pain on the left side of his back and down his leg because this screw was surgically implanted improperly. Following the Board hearing, additional medical records were added to the Veteran's file and a March 2021 VA physician noted there was a mild medial inferior breech of the left L5 pedicle screw. Therefore, clarification is required to determine whether the Veteran's June 2014 TLIF surgery caused an additional disability and whether the proximate cause of the disability was due to 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. The matter is REMANDED for the following action: Request an opinion from an appropriate clinician regarding whether additional disability was caused by the January 2011 and June 2013 surgeries performed on the Veteran's lower back and whether such additional disability was due to VA fault or an event not reasonably foreseeable. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should indicate whether it is at least as likely as not (i.e., a 50 percent or more probability) that an additional disability is due to his VA treatment or was aggravated, regardless of permanence, due to his VA treatment. The clinician should indicate whether an additional disability was (a) caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part or VA's failure to exercise the degree of care that would be expected of a reasonable health care provider, or (b) an event not reasonably foreseeable. The clinician must consider whether VA failed to timely diagnose and properly treat the disease, and whether this failure proximately caused the continuance or natural progress of the disease. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment or lack of treatment. The clinician must specifically consider and discuss the VA treatment note dated March 3, 2021 indicating that there was a mild medial inferior breech of the left L5 pedicle screw. The clinician must provide reasons for each opinion given and explain and discuss the medical evidence and the medical principles involved for any opinions expressed. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the clinician rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.