Citation Nr: 21024073 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-20 908 DATE: April 22, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for cricopharyngeal BAV has been withdrawn. Entitlement to compensation under 38 U.S.C. § 1151 for a right arm impairment, to include a severed nerve is granted. FINDINGS OF FACT 1. On January 19, 2021, during a virtual hearing, and prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal as to the issue of entitlement to compensation under 38 U.S.C. § 1151 for cricopharyngeal BAV. 2. The preponderance of the evidence reflects that the Veteran incurred an additional right arm disability as a result of an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to compensation under 38 U.S.C. § 1151 for cricopharyngeal BAV by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right arm impairment, to include a severed nerve have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1957 to April 1959. In January 2021, the Veteran testified via virtual hearing before the undersigned. 1151 Eligibility A veteran may be awarded compensation for an additional disability, not the result of 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 (c), (d)(1), (d)(2). 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, or examination to the Veteran’s condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361 (b). VA considers each involved body part or system separately. Id. If an additional disability is shown, actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that a veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. The event does not have to be “completely unforeseeable or unimaginable” but it must “be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” 38 C.F.R. § 3.361 (d)(1). 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 38 U.S.C. § 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 § 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. The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that the VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Federal Circuit further held that § 1151(a)(1)(B) 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. 1. Entitlement to compensation under 38 U.S.C. § 1151 for cricopharyngeal BAV Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2019). Withdrawal may be made by the veteran or by his or her authorized representative, except that a representative may not withdraw a substantive appeal filed by the veteran personally without the express written consent of the veteran. 38 C.F.R. § 20.204 (c) (2019). On January 19, 2021, during the hearing before the undersigned and prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to compensation under 38 U.S.C. § 1151 for cricopharyngeal BAV. The undersigned explained the consequences of his decision to withdraw the claim, and the Veteran indicated that he understood the consequences and nevertheless wished to withdraw the claim. Thus the withdrawal was unambiguous and knowing and intelligent, and there remains no allegation of errors of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to review the appeal as to that claim, and, as such, that issue is dismissed. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a right arm impairment, to include a severed nerve The Veteran contends that compensation is warranted for residuals of an anterior cervical discectomy and fusion at C3-C4, C4-5, and C5-C6 with grafting and plating on December 19, 2016 at St. Cloud Hospital, a contracted third party facility. Specifically, the Veteran asserts that on July 27, 2016, his treating physician at the St. Cloud VA Medical Center recommended, referred, and approved the Veteran for cervical surgery through Vet Choice, as the procedure was not available through the VA Health Care System in a timely manner. CentraCare Health at St. Cloud Hospital was the facility the VA contracted with to perform the procedure. According to VA treatment records, in April 2015 the Veteran reported intermittent numbness and tingling in the right arm. A June 2015 neurology consult shows the Veteran stated that he developed pain and tenderness at the base of his neck on the right side a year prior and that more recently he noticed numbness and tingling in the right arm and hand. He also reported that extension of his neck brought on the sensory symptoms. A December 2016 pre-op primary care note reflects the Veteran reported neck pain with intermittent right arm numbness and persistent numbness of the left fourth and fifth finger and hand. A review of CentraCare Health treatment records shows the Veteran was scheduled for cervical discectomy and fusion on December 19, 2016. A pre-surgery examination that morning reflects the physician reviewed a September 14, 2016 MRI scan of the cervical spine which showed diffuse multilevel cervical spondylosis with disc osteophyte complexes and facet arthropathy. On neurological examination he had normal strength in his upper and lower extremities except for right deltoid weakness, graded at 4/5. His deep tendon reflexes were diminished. The physician noted he outlined the risks associated with the procedure and the typical perioperative course. The risks were noted as follows: Risks include but are not limited to infection, bleeding complications, nerve root and/or spinal cord injury, vocal cord paralysis, difficulty swallowing, airway compromise, pseudoarthrosis, instrumentation failure, the possibility that he could require additional spine surgery in the future, and the possibility that his symptoms would not be relieved to his satisfaction. The physician also informed the Veteran they may need to consider an EMG at some point in time to look for the possibility of ulnar neuropathy is his left sided numbness into his forearm and fourth and fifth digits do not improve after the cervical fusion. The December 19, 2016 operative procedure note reflects the Veteran was willing to accept these risks and informed consent was granted. After the surgery, it was noted there were no immediate complications and the Veteran was returned to the recovery room in stable and satisfactory condition with a cervical collar on. During a post-op check, the Veteran reported increased weakness in his right arm. The Veteran stated sensation in the left hand felt like it was improving. On examination he had good strength except for his right deltoid and biceps weakness was graded 1/5. The surgeon noted that he anticipated the deltoid and biceps weakness would improve gradually over time. The Veteran was discharged on December 21, 2016. His discharge examination showed motor strength to be 5/5 throughout the bilateral upper and lower extremities with the exception of the right deltoid and bicep which was 2/5. Sensation was intact to light palpation with the exception of decreased sensation to the left hand which was noted as chronic. VA treatment notes since the December 2016 surgery show the Veteran had ongoing issues with limited strength and function of his right arm. After surgery, the Veteran was referred for outpatient occupational/physical therapy. A January 3, 2017 physical therapy note reflects the Veteran complained of weakness of the right bicep, and although he had some mild shoulder pain, his main complaint was that he had lost strength in his biceps area. The Veteran stated that he was told by the surgeon that they had to do a little bit more work than anticipated to open up the lateral foramen in the neck which caused some irritation to the nerve that innervates the biceps. The Veteran reported that dressing was difficult due to him not being able to elevate his arm adequately. On examination he needed help removing his jacket. He had 2 minus biceps and 2 minus deltoid function. The therapist assessed that the Veteran had a well-healing fusion but had some apparent nerve damage primarily affecting the biceps and anterior deltoid. The therapist went on to state that given the Veteran can initiate voluntary contraction, it is likely that the nerve issue will settle down and heal nicely. Lastly, the therapist stated the goal was for the Veteran to have 75-100% resolution of his bicep and deltoid weakness within 6-12 weeks so that he can function normally within his environment. The therapy plan was physical therapy 1-2 times per week for 6-12 weeks to reach the stated goal. A January 6, 2017 physical therapy note reflects the Veteran reported he had been trying to use his arm routinely. Objectively, the Veteran was able to perform 2+ out of 5 strength at the biceps. The therapist assessed the Veteran was advancing nicely with regard to his strength. On January 9, 2017, the Veteran reported to physical therapy stating he had been moving his arm as much as possible and exercising routinely with mild improvement. The therapist noted the Veteran was advancing with regard to his strength but continued to lack good deltoid strength and his biceps strength was mildly better. A January 12, 2017 rehabilitation note shows the Veteran stated his wife was helping him do his stretches and he seemed to be able to move his right arm into more positions compared to the prior rehabilitation visit. A January 20, 2017 rehabilitation note reflects the strength of the right arm had not improved significantly since the last visit, but the Veteran stated he had been diligent on working with the strength of his right arm. It was noted the Veteran would be seen once a week for the next couple of weeks to assess his progress. A February 8, 2017 physical therapy note shows the Veteran was able to lift his arm a little bit further and was able to go up over his head in supine. The therapist assessed the Veteran continued to have some difficulty against gravity, but his strength, gravity eliminated, was getting better. The therapist noted the Veteran was advancing slowly but surely. A February 22, 2017 primary care note reflects the Veteran reported that since the December 19, 2016 surgery he has had difficulty with using his right arm. He reported that the surgeon thought they may have irritated a nerve but told him they did not cut a nerve. The Veteran demonstrated he could lift his right arm approximately 30 degrees. A March 2017 neurology consult reflects the December 2016 cervical decompression and fusion surgery caused dysarthria, dysphagia, and severe weakness in the right arm. On physical examination the Veteran had 2/5 strength in the right deltoid, biceps, infraspinatus, and supraspinatus. The forearm and hand muscles were normal in strength. An October 2017 primary care note reflects the Veteran had very little use of his right arm with very minimal flexion, abduction, and external and internal rotation. A March 20, 2018 primary care note shows the Veteran reported the December 2016 left him with right upper arm weakness. On examination, the physician noted the veteran had limited use of his right arm with the ability to abduct about 15 degrees. He was able to forward flex to brin his hand up to his mouth, but supination was quite limited and was the strength and function of his right hand. Although the Veteran could hold a spoon to his mouth but was unable to make the necessary adjustments to use the spoon for eating, he had to eat with his left hand. The Veteran reported he was able to shave but only by supporting his right arm with his left arm. The Veteran is right-hand dominant. The assessment was history of cervical radiculopathy status post cervical spine fusion with residual right-sided dysfunction including weakness and decreased range of motion of the right arm. A May 2018 statement from the Veteran reflects that since the December 2016 surgery he has suffered from moderate to severe paralysis in his right arm and that his life has been significantly changed due to the surgery. The Veteran stated that he thought a nerve on the right side may have been severed or severely damaged during the surgery. The Board notes that the surgical report does not show that a nerve was severed. Based on the medical evidence above, the Board finds that VA practitioner recommended that the Veteran have the December 2016 surgery, the surgery was performed, an unforeseeable event occurred and the unforeseeable event proximately caused the Veteran’s additional disability of severely weakened right arm strength and function. Prior to the Veteran’s surgery he had some intermittent numbness and tingling in his right arm and hand but otherwise had full use of his right arm and hand with no problem raising his arm or using it in his normal daily activities. His December 19, 2016 pre-op neurological examination showed he had normal strength in his upper and lower extremities except for right deltoid weakness, graded at 4/5. A post-op check shows the Veteran reported increased weakness in his right arm. On examination he had good strength except for his right deltoid and bicep weakness was graded 1/5. The surgeon noted that he anticipated the deltoid and bicep weakness would improve gradually over time. However, the Veteran’s right arm weakness worsened as time went on. He went from a right arm strength of 4/5 and full use of his right arm prior to surgery to severely weakened and limited use of his right arm now. As for proximate cause of the additional disability, a March 2017 neurology consult states the December 2016 cervical decompression and fusion surgery caused dysarthria, dysphagia, and severe weakness in the right arm. Additionally, the Veteran’s primary care physician, in March 2018, assessed the Veteran’s right-sided dysfunction including weakness and decreased range of motion of the right arm was a residual of the status post cervical spine fusion surgery in December 2016. The Veteran contends, and the Board agrees that the limited range of motion, limited function and weakness of the Veteran’s right arm was an unforeseeable event. The risks explained to the Veteran included vocal cord paralysis, infection, bleeding complications, airway compromises, instrumentation failure, nerve root and/or spinal cord injury, the possibility that he could require additional spine surgery in the future, and the possibility that his symptoms would not be relieved to his satisfaction. The risks did not include a severely weakened right arm with severely limited motion and function. There was a possibility that his symptoms would not be relieved to his satisfaction but in this case his right arm was worsened beyond the pre-operative status. Prior to surgery, in fact the morning of the surgery, the Veteran had right arm strength of 4/5. When the Veteran informed the surgeon later the same day of the surgery that his right arm had increased weakness on examination, he had good strength except for his right deltoid and biceps weakness was graded 1/5. The surgeon noted that he anticipated the deltoid and biceps weakness would improve gradually over time. The Veteran stated sensation in the left hand, which was the hand that gave him the most difficulty prior to surgery, felt like it was improving. Viewing the evidence in the light most favorable to the Veteran, and using a referral theory pursuant to that used by the Federal Circuity in Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017), the Board finds that an unforeseeable event occurred during a VA recommended surgery by a non-VA facility and the unforeseeable event proximately caused the Veteran’s additional disability of severe weakness in the Veteran’s right arm. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.