Citation Nr: 21030296 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-29 564 DATE: May 18, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a thoracic spine disability, claimed as a back condition, contended to be due to a June 23, 2010 spinal cord stimulator implant surgery at a VA medical facility, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to November 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By way of background, the Board previously remanded this matter in April 2018 and again in February 2021 for additional development. In November 2016, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. The Veteran was notified that the VLJ that conducted his hearing is no longer employed by the Board by way of a January 2021 letter. He was offered the opportunity to have a new hearing and was notified that if he did not respond within 30 days, the Board would assume that he does not desire an additional hearing and would proceed with adjudication of the issue. The Veteran has not responded to this letter. Thus, the Board will proceed to consider the claim without additional hearing testimony. As will be discussed in more detail below, substantial compliance with the February 2021 remand directives has not been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order.) 1. Entitlement to compensation under 38 U.S.C. § 1151 for a thoracic spine disability, claimed as a back condition, contended to be due to a June 23, 2010, spinal cord stimulator implant surgery at a VA medical facility, is remanded. The Veteran contends that he developed an additional spine disability after a June 2010 spinal cord stimulator implant surgery and eventual removal of the spinal cord stimulator at a VA medical facility due to negligence on the part of the VA. The Board finds the evidence of record is insufficient to resolve the Veteran's claim. The Veteran underwent spinal cord stimulator placement at a VA facility to treat chronic pain due to lumbar spondylosis and degenerative disc disease in June 2010. Following the procedure, the Veteran complained of pain and, ultimately, had the device removed. He contends as a result of the placement and ultimate removal of the device he now has chronic pain. The Board previously remanded this claim to obtain a VA examination and opinion to ascertain whether the Veteran, in fact, has an additional disability of the thoracic spine as a result of VA medical care and for any additional disability found, whether the disability/disabilities were the result of (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or (b) an event not reasonably foreseeable. The Veteran was afforded VA examinations in 2019 and 2020, but the Board finds these examinations are insufficient to fully resolve the matter. In 2019, the VA examiner concluded that following the stimulator placement procedure and removal, the Veteran experienced additional disabilities of: (1) a surgical scar and (2) TTP of the paraspinal muscles at the lower third of the incision site. The 2019 VA examiner, however, erroneously offered an opinion regarding service connection rather than entitlement to compensation under 38 U.S.C. § 1151. Of note, the examiner stated that the Veteran experiences residual muscle pain from the implanted device and a more appropriate examination would be a muscle disability benefits questionnaire in an effort to avoid confusion with his non-service connected back condition. The Veteran was afforded another VA examination in April 2020 wherein the examiner identified additional disabilities of: (1) a surgical scar and (2) incisional pain. While the examiner discussed at lengths that the surgical scar was well-healed and, therefore, was not the result of any fault on the part of the VA or due to an event not reasonably foreseeable, no similar opinion was rendered with regard to the incisional pain or the previously identified TTP of the paraspinal muscles at the lower third of the incision site. In February 2021, the Board remanded the case for a muscle disability benefits questionnaire and render an addendum opinion, including rationale, addressing the Veteran's disabilities stemming from the June 2010 spinal cord stimulator implant surgery and subsequent removal of the stimulator. The requested muscle DBQ was not provided, and the VA medical opinion provided in March 2021 did not adequately address whether the identified back disabilities were "reasonably foreseeable." When VA undertakes to provide a VA examination or medical opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the above, the Board finds that a remand is required for an examination for muscle DBQ and an addendum opinion that adequately addresses the matters noted above. The matters are REMANDED for the following action: Schedule the Veteran for a muscle DBQ examination with an appropriately qualified examiner, who will identify all residual muscle disability associated with the June 2010 surgery spinal cord stimulator implant surgery and subsequent removal of the stimulator. The examiner is to render an opinion, including rationale, addressing all of the Veteran's disabilities stemming from the June 2010 spinal cord stimulator implant surgery and subsequent removal of the stimulator, to include: (1) surgical scar, (2) incisional pain, (3) TTP of the paraspinal muscles at the lower third of the incision site, and (4) any other disability found on examination that is deemed due to the spinal cord stimulator implant surgery and/or subsequent removal. In particular, for each disability numbered (1) through (4), the examiner is directed to render an opinion whether the disability is at least as likely as not (50 percent or greater probability) a result of (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or, alternatively, (b) an event not reasonably foreseeable. The examiner should review the surgical records as well as any consent forms of record in rendering the opinions requested. (Continued on the next page) The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.