Citation Nr: 21022558 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 96-00 763A DATE: April 16, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for any cervical and/or thoracic spine condition is granted. REMANDED Entitlement to an initial rating in excess of 40 percent for lumbar disc disease with history of laminectomy (low back disorder) from October 8, 2004, (exclusive of the period in 2009 when a temporary total evaluation was assigned pursuant to 38 C.F.R. § 4.30) is remanded. Entitlement to an extension of a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 beyond October 31, 2009, is remanded. Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to November 1, 2009, is remanded. FINDINGS OF FACT 1. The Veteran was referred to a non-VA medical provider, where he underwent a total disc arthroplasty at L4-5 and L5-S1 on May 5, 2009. 2. The additional disability incurred as a result of the May 2009 surgery and was the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for any cervical and/or thoracic spine condition have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service with the U.S. Navy from August 1990 to May 1992. The Board notes that this case has a complex procedural history, with prior actions by the Board, the United States Court of Appeals for Veterans Claims (Court), and various rating decisions that have affected the nature of the current appellate claims. This case originally came before the Board of Veterans’ Appeals (Board) on appeal from a May 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which established service connection for a low back disorder with an initial disability rating of 10 percent, effective February 1, 1995. In December 1996, the Veteran provided testimony at a hearing before personnel at the RO. In December 1998, the Veteran testified before a Veterans Law Judge (VLJ). However, that VLJ is no longer with the Board, and the Veteran was given the option of a new hearing in May 2003. He then testified before another VLJ in July 2003. That VLJ is also no longer with the Board, and the Veteran was again provided with the option of a new hearing in March 2010. The Veteran declined a new hearing by correspondence received later that same month. Further, it is noted the Veteran indicated on the 2014 Substantive Appeal for his 38 U.S.C. § 1151 claim that no hearing was desired. The Board also notes that a December 1996 rating decision assigned an effective date of May 28, 1992, for the establishment of service connection for the Veteran’s low back disorder, while a September 2002 rating decision assigned a 20 percent rating effective from June 23, 1998. In a June 2004 decision, the Board denied an initial disability rating in excess of 10 percent for the low back disorder prior to June 23, 1998; and remanded the issue of entitlement to a rating in excess of 20 percent from June 23, 1998. The Board again remanded that claim in August 2005 and June 2006. A January 2007 rating decision increased the assigned rating for the Veteran’s service-connected low back disorder to 40 percent, effective August 30, 2006. Thereafter, in July 2007, the Board granted a 40 percent rating effective from October 8, 2004, and denied a rating in excess of 20 percent for the period from June 23, 1998 to October 7, 2004. The Veteran appealed the Board’s July 2007 decision to the Court. In a June 2009 rating decision, the RO granted a temporary total evaluation effective May 5, 2009 pursuant to 38C.F.R. §4.30 (convalescent rating) for the convalescent treatment of the low back disability, reverting to 40 percent effective September 1, 2009. In a September 2009 rating decision, the RO extended the temporary total evaluation to October 31, 2009, reverting to 40 percent effective November 1, 2009. In a November 2009 memorandum decision, the Court vacated the July 2007 Board decision as to that part of the Board decision that denied “a low-back rating higher than 40” percent for the period beginning October 8, 2004; the Court affirmed the remainder of the decision. The Court remanded the case to the Board for further development and adjudication, finding that the Board failed to provide an adequate statement of reasons or basis for its decision on the issue of whether an increased rating in excess of 40 percent was warranted for the low back disability for the period beginning October 8, 2004. The Court also found that the Board’s June 2004 decision denying a rating in excess of 10 percent prior to June 23, 1998, for the low back disability, was final. In a July 2010 decision, the Board denied a rating in excess of 40 percent for the low back disorder for the period from October 8, 2004 to October 31, 2009, inclusive; granted a separate rating of 10 percent for right lower extremity incomplete paralysis of sciatic nerve associated with the low back disorder, effective from October 8, 2004; and granted a separate rating of 10 percent for left lower extremity incomplete paralysis of sciatic nerve associated with the low back disorder, effective from October 8, 2004. In addition, the Board remanded for further development the issues of entitlement to a rating in excess of 40 percent for the low back disorder for the period beginning from November 1, 2009, and entitlement to a TDIU (pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In October 2010 rating decision, the RO denied a claim (submitted November 2009) for an extension of the temporary total rating under 38C.F.R. §4.30, beyond October 31, 2009. Later in October 2010, the Veteran submitted a notice of disagreement for that decision, initiating an appeal to the Board as to the claim for an extension of the temporary total rating under 38C.F.R. §4.30, beyond October 31, 2009. The Veteran appealed the Board’s July 2010 decision to the Court. In a May 2011 Order, the Court granted joint motion vacating and remanding the July 2010 Board to the extent it denied the Veteran’s claim for a rating in excess of 40 percent for the lumbar disc disease with history of laminectomy, from October 8, 2004 to October31, 2009 (exclusive of the period from May 5, 2009 to October 31, 2009, during which time a temporary total evaluation was assigned pursuant to 38 C.F.R. § 4.30). In an August 2011 rating decision, the RO responded to an April 2011 formal application for TDIU by granting TDIU effective November 1, 2009. The Veteran submitted a notice of disagreement to initiate an appeal from that decision, claiming an effective date prior to November 1, 2009 for TDIU. However, the claim for TDIU prior to November 1, 2009 is already on appeal before the Board as part of the Veteran’s claim regarding the initial disability rating for his low back disorder. In September 2012, the Board remanded for further development the claims for a temporary total evaluation beyond October 31, 2009; a rating in excess of 40 percent for service-connected low back disorder from October 8, 2004; and entitlement to a TDIU prior to November 1, 2009. In February 2018, the Board remanded the claims for a temporary total evaluation beyond October 31,2009; a rating in excess of 40 percent for service-connected low back disorder from October 8, 2004; entitlement to a TDIU prior to November 1, 2009; and entitlement to compensation under 38U.S.C. §1151. The claims are now returned to the Board for appellate adjudication. Compensation Under 38 U.S.C. § 1151 The Veteran claims an additional (cervical and/or thoracic spine condition) disability as a result of an unforeseeable event (bed malfunction after surgery) that happened during the May 2009 surgery performed by a non-VA doctor. The Board notes that a claim for compensation under 38 U.S.C. § 1151 must, as a threshold matter, be based on treatment or care “provided by VA,” which is further defined as services that were either provided by a VA employee or performed in a VA facility. 38 U.S.C. § 1151 (a)(1). The implementing regulation, 38 C.F.R. § 3.361 (f), further provides that treatment or care furnished either (a) under a contract made under 38 U.S.C. § 1703 (authorizing VA to contract with a non-VA provider for medical service to veterans when VA is not capable of furnishing the care required) or (b) under 38 U.S.C. § 8153 (concerning sharing of health-care resources) in a facility over which the Secretary does not have direct jurisdiction are not treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151 (a)(1). Consequently, in this case, the Veteran’s surgery, which was contracted for with a non-VA provider, is not considered care furnished by VA for the purpose of receiving compensation under 38 U.S.C. § 1151. Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently recognized that a claimant may succeed under a referral theory pursuant to section 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of section 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151(a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. More specifically, the Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), the regulation requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Court further held that § 1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. In this case, under the holding in Ollis, compensation benefits may be granted pursuant to § 1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran’s back surgery in May 2009 (i.e., the VA practitioner recommended that the Veteran have the surgery performed), (2) an “unforeseeable event” occurred, and (3) the unforeseeable event proximately caused the Veteran’s additional disability of residuals of the back surgery. Here, the Veteran asserts that his back surgery was contracted and paid for by VA. A January 2009 VA treatment note documented that the Veteran was evaluated by private physician who offered his back surgery. However, the Veteran did not have adequate insurance and wanted the VA to pay for it. The procedure was not available at that particular VA. The examiner noted that they would do a fee basis consult for possible surgery at a private facility. A May 2009 VA treatment note demonstrated that the Veteran was referred to Dr. JM and a signed release was not needed. VA authorization for the surgery was sent to Dr. JM. The authorization was due to non-availability of services within the VA facility. On May 5, 2009 the Veteran underwent a total disc arthroplasty L4-L5 and L5-S1 with Dr. JM at St. L. Hospital. In this case, the evidence demonstrated an unforeseeable event occurred. The records demonstrated that the Veteran had surgery in May 2009. During his recovery the records revealed that there was a bed malfunction. On February 2012 Dr. LM opinion, he noted that he reviewed the Veteran’s medical records, radiographic studies, and deposition transcripts concerning the events that happened while he was a patient at St. L Hospital. Generally, these showed that three days following the May 2009 surgery, the Veteran’s hospital bed “flipped” and threw him into the air. Dr. LM opined that based on the Veteran’s history and reported objective and subjective complaints, one could with a reasonable degree of medical probability opine that the traumatic event of the malfunctioning bed caused the disc herniations. An MRI of the cervical spine performed the same day demonstrated broad-based disc bulges at C3-C4, C4-C5, and C5-C6. This put some pressure on the anterior thecal sac. This also represented a significant progression from the normal MRI performed one year earlier. The evidence supports a finding that the unforeseeable event proximately caused the Veteran’s additional disability of cervical and/or thoracic spine condition. The February 2012 private examiner indicated that the Veteran sustained additional disability, to include cervical and/or thoracic spine condition, as result of the May 2009 surgery. He noted an MRI of the cervical spine performed the same day demonstrated broad-based disc bulges at C3-C4, C4-C5, and C5-C6. This put some pressure on the anterior thecal sac. This also represented a significant progression from the normal MRI performed one year earlier. In sum, the evidence of record shows that VA medical care proximately caused the Veteran’s back surgery in May 2009; that an unforeseen event occurred, in that the Veteran’s back surgery caused an additional disability. Accordingly, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 for cervical and/or thoracic spine condition is warranted. REASONS FOR REMAND Unfortunately, the RO failed to comply with the Board’s February 2018 remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Another remand is warranted. Pursuant to the Board’s February 2018 remand directives, the Veteran underwent a VA examination in September 2020. The February 2018 Board remand directive asked the VA examiner to provide an opinion as to whether the Veteran’s low back disorder was consistent with pronounced symptoms of intervertebral disc syndrome since October 8, 2004. The examiner was also asked to provide an opinion as to whether it is at least as likely as not that the Veteran required convalescence from his May 2009 lumbar surgery beyond October 31, 2009. The September 2020 examiner only provided information as to the current functional impairment of the Veteran’s back condition. She did not provide an opinion responsive to any of the February 2018 remand directives. Thus, remand is required to obtain a sufficient opinion with rationale. As has been previously noted, the claim for TDIU is inextricably intertwined with the evaluation of the low back. Adjudication is therefore deferred pending the above action. Additionally, the initial rating for the cervical spine disability will impact the consideration of TDIU. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA back examination to evaluate the nature and severity of his service-connected low back disorder. The claims folder must be reviewed in connection with the examination. The examiner must opine as to whether the Veteran’s low back period during the period since October 8, 2004, was consistent with pronounced symptoms of intervertebral disc syndrome, that are persistent and compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. The examiner must opine as to whether it is at least as likely as not that the Veteran required convalescence from his May 2009 lumbar surgery beyond October 31, 2009. A date of release from convalescence should be identified. A complete rationale for any opinion expressed should be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. 3. Thereafter, readjudicate the remanded issues, to include entitlement to TDIU under 38 C.F.R. § 4.16(b), which may require referral to the Director, Compensation and Pension Service. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.