Citation Nr: 21032691 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-33 947 DATE: May 27, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for low back disability due to VA medical care is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1964 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing is in the Veteran's file. In January 2020 and in December 2020, the Board remanded this matter for additional evidentiary development. 1. Entitlement to compensation under 38 U.S.C. § 1151 for low back disability due to VA medical care is remanded. The Veteran contends that his current low back disability is a result of the VA's carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault when treating his low back disability, to include multiple surgical operations. A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (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 not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In its April 2021 Brief, the Veteran's representative persuasively argues that the December 2020 VA medical opinion is inadequate. Simply put, the rationale provided does not adequately support the conclusion that the Veteran's worsening spine disability is solely the result of the degenerative nature of his lumbar spine condition and his age. The VA examiner did not account for the need for a thoracolumbar fusion and revision in April 2018 after a VA implanted spinal hardware failure. The Board also notes that a May 2008 VA treatment report noted that at the time of the Veteran's initial spinal surgery in December 2002, a concomitant L5 pars defect had not been recognized and this may have led to additional surgeries being required. For the foregoing reasons, remand for an additional medical opinion is needed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Given the complexity involved in this case, an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. This matter is REMANDED for the following action: 1. Obtain an independent medical expert opinion, from a specialist in orthopedic surgery if possible, pursuant to 38 U.S.C. § 5109. The claims file should be made available to and reviewed by the designated independent medical expert. The expert should provide medical opinions as to the following inquiries: (a.) State whether it is at least as likely as not (a 50 percent or greater probability) that any additional disability was caused by the multiple VA spinal surgeries (performed December 2002 to April 2018) and/or the VA medical and hospital care following each, including residuals of broken equipment/rods left in the spine of the Veteran after one of his surgical operations. (b.) If a relationship between additional disability and the multiple VA spinal surgeries and/or the VA medical and hospital care is shown, provide an opinion as to whether it is as likely as not (a 50 percent or greater probability) that the additional disability was the result of (i) carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or (ii) an event not reasonably foreseeable. In rendering the requested opinions, the examiner should specifically address whether it was reasonably foreseeable that the implanted spinal rods would fracture post-surgery. An event not reasonably foreseeable is one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The examiner must also address the May 2008 VA treatment report, which noted that the Veteran had a concomitant L5 pars defect which was not recognized at the time of his initial VA spinal surgery and may have caused additional surgeries to be performed. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.