Citation Nr: 21029105 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-30 838 DATE: May 12, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a neck disorder is denied. REMANDED Entitlement to service connection for vertigo, claimed as secondary to the removal of a mass from the neck, is remanded. FINDING OF FACT The most probative evidence reflects that the Veteran's neck fusion was not caused by medical care furnished during the October 2012 VA Peripheral Nerves examination. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for an additional disability manifested by a neck fusion as a result of a VA medical examination have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army with active duty from August 1969 to July 1971 with subsequent service with the National Guard for over 20 years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2012 and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In March 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This claim was previously before the Board in February 2020, at which time it was remanded for additional development. Entitlement to compensation under 38 U.S.C. § 1151 for a neck disorder A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1)(A), (B) (2012); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, 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. VA considers each body part or system separately. 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). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA's negligence. Viegas, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Regarding carelessness or negligence, 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 was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the additional disability or death; 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. See 38 C.F.R. § 3.361 (d)(1). Regarding reasonable foreseeability, 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements; a veteran's additional disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. 38 U.S.C. § 1151 (a)(1). Dr. J. B. performed a VA Peripheral Nerves Conditions examination in October 2012, and the Veteran asserts that the physician performed an adjustment that left him injured. Specifically, the Veteran alleges that Dr. J. B. approached him from behind and wrenched his head to the right, causing explosive pain in the right side of his neck. See February 2016 Correspondence. The pain gradually subsided, but the Veteran experienced periodic pain in the neck. Around August 2015, the pain steadily worsened, and it began affecting everything he tried to do. The Veteran submitted private treatment records from February 2014 when he was seen for interstitial lung disease, hemangioma, hypertension, hiatal hernia, vertigo, hearing loss, allergies, and hypercholesterolemia. Upon physical examination, the physician noted that the Veteran's neck was supple with full range of motion. A January 2016 cervical spine MRI revealed mild reversal of the normal cervical curvature. There was severe disc space narrowing at C5-C6 and C6-C7, moderate disc space narrowing at C2-C3 and mild disc space narrowing involving the remainder of the cervical spine. There was minimal anterolisthesis of C3 on C4 and C4 on C5. There was also minimal retrolisthesis of C5 on C6 and C6 on C7. The craniocervical area, however, was normal. As a result of the findings, the examiner diagnosed severe degenerative disc disease at C5-C6 and C6-C7, moderate degenerative disc disease at C2-C3 and mild degenerative disc disease involving the remainder of the spine. There was also mild central canal stenosis at C5-C6 and multilevel neural foraminal narrowing. The Veteran submitted correspondence in July 2020 detailing his experience with Dr. J. B., stating that the physician "got up and went behind me without another word and grasp my head and wrenched my head and neck (spine), causing great pain and injury." He asserted that this caused him to have his neck fused. Pursuant to the February 2020 Board remand, the Veteran received a VA examination in August 2020 and the examiner noted a cervical spinal fusion from 2016. The Veteran recounted his experiences with Dr. J. B. and then indicated that he saw a spine surgeon who fused two neck vertebrae in April 2016. An addendum was submitted in September 2020 and the examiner opined that it was less likely than not that the Veteran's neck fusion was caused by or became worse as a result of VA treatment. Dr. J. B. was not a chiropractor or osteopathic physician, so his core medical school curriculum would not include spinal manipulation. Therefore, the examiner found it less likely than not that he would have performed a spinal manipulation. However, it was acknowledged that cervical spine manipulation could have adverse complications, but it was mostly related to the vascular system associated with the cervical spine and not the bony cervical spine. The examiner also noted the findings from the MRI and found that the noted changes came over time and would not be related to a one-time incident. Furthermore, the cervical fusion was performed in April 2016, which was about four years after the Veteran was seen by Dr. J. B. in October 2012. In light of the lack of documentation to support that a spinal manipulation was performed by VA attending personnel, adverse complications of spinal manipulation being more related to cervical vasculature than the bony cervical spine, MRI degenerative findings that would come over time and would not be related to a one-time incident, and a temporal relationship, the examiner concluded that it was less likely than not that the neck fusion was caused by or became worse as a result of VA treatment. It was also less likely than not that the neck fusion resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner continued and opined that it was less likely than not that the neck fusion resulted from an event that could have been reasonably foreseen by a reasonable healthcare provider. It was acknowledged in the medical community at large that a patient's subjective etiology of a condition may not be the objective etiology of a condition. Furthermore, it was acknowledged in the medical community at large that examinations for peripheral nerves less likely than not caused adverse complications. Finally, the examiner opined that it was less likely than not that the neck fusion resulted from a failure on the part of VA to timely diagnose and/or properly treated the claimed disability that allowed the disability to continue or progress. There was no evidence to indicate that there was failure on the part of VA to timely diagnose and/or properly treated the claimed disability that allowed the disability to continue or progress. At the outset, the Board notes that the Veteran is competent to report treatment and finds his assertations regarding the treatment he received in October 2012 highly credible. The threshold questions before the Board, however, are (1) whether the Veteran's neck fusion is an additional disability of the purpose of VA compensation under 38 U.S.C. § 1151, and if so, (2) whether such disability is the result of VA treatment. If causation of any additional disability is found, it must be determined whether such is the result of VA's negligence, carelessness, or unforeseeable event. The Board observes that the Veteran's neck fusion was initially performed in April 2016. There is no indication in the file that the Veteran experienced symptoms congruent with this disability prior to being seen for a VA peripheral nerves examination by a VA medical professional in October 2012. As such, a neck fusion will be accepted as an additional disability for the purpose of analyzing the Veteran's appeal seeking benefits under the provisions of 38 U.S.C. § 1151. In light of above, the next question to be addressed is whether there is a causal relationship between the neck fusion and the medical examination furnished in October 2012. The only medical evidence addressing this matter is an opinion from a September 2020 VA examiner, who stated that there was no evidence of a causal relationship the Veteran's neck fusion and the actions of the October 2012 VA medical professional. In support of this opinion, the September 2020 VA examiner noted that cervical manipulation complications were more related to cervical vasculature than the bony cervical spine, the MRI findings would not be related to a one-time incident, and there were four years between the VA examination and the neck fusion. It is important to note that the provisions of 38 U.S.C. § 1151 require that the VA treatment actually caused the additional disability, not that the additional disability merely came into existence chronologically at the time of or after the treatment. Although the Board has considered whether some of the September 2020 VA examiner's comments could amount to a statement supporting entitlement to compensation for neck fusion based on an unforeseeable consequence of the examination, the Board finds such consideration is not necessary where, as here, there is a medical opinion that does not find that any additional disability, including neck fusion, arose out of the subject examination. The Board further notes that there is no medical opinion of record that contradicts the opinions of the September 2020 VA examiner. The Board finds this medical opinion highly probative, and the only medical evidence to the contrary stems from the Veteran. While a Veteran is competent to report treatment and symptoms of a disorder, he is not competent to diagnose or medically attribute any incident to a current disorder. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Board finds that the most probative evidence of record reflects that the Veteran did not incur an additional disability as a result of a VA medical examination performed in October 2012. Regrettably, as such, the Veteran's claim for compensation under 38 U.S.C. § 1151 for an additional disability manifested by a neck fusion cannot succeed, and the matters of negligence, carelessness, and foreseeability are moot. REASONS FOR REMAND Entitlement to service connection for vertigo, claimed as secondary to the removal of a mass from the neck Pursuant to the February 2020 Board remand, the Veteran received a VA examination in August 2020 and the examiner noted a current diagnosis of peripheral vertigo from 2000. Later in August 2020, a VA physician concluded that the vertigo condition was less likely proximately due to or the result of the service-connected condition. He noted the March 2014 Board hearing and the August 2016 medical opinion which found that there was no physiologic way to relate the vertigo to resection of a benign hemangioma. It was also less likely than not aggravated by the Veteran's service-connected condition. An addendum opinion was submitted in October 2020 and the examiner was asked to review the conflicting medical evidence and provide a medical opinion. Based on a summary of the conflicting evidence, the examiner concluded that the Veteran's peripheral vertigo/peripheral vestibular disorder was less likely than not caused or aggravated by the resection of a benign hemangioma at the right palate. For example, he noted the August 2020 VA examination but finds that the examiner did not do a credible job of connecting vertigo to the hemangioma removal. The examiner also placed great probative weight on the August 2020 opinion by the VA physician because it was offered by a physician and quoted a Board-certified neurologist. The October 2020 examiner found that the Veteran presented with no real evidence that his peripheral vertigo/vestibular disorder was in any conceivable way caused or made worse by his prior history of resection of a benign hemangioma, which by all accounts proceeded uneventfully and without complications. The Board finds the August 2020 and October 2020 medical opinions inadequate and concludes that a new VA medical opinion is warranted. Specifically, the August 2020 physician relies on the August 2016 VA opinion, which the Board has previously found to be inadequate. He does not offer an independent opinion, but rather merely recounts the previous medical evidence, and the Board hearing and prior Board remand. Furthermore, the examiner does not offer a rationale for his conclusion that the vertigo condition was less likely than not aggravated by the service-connected condition. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision."). The matters are REMANDED for the following action: 1. Submit the claims file to an appropriate clinician for an addendum opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vertigo was caused or aggravated by his removal of a mass from his neck. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran's vertigo disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.