Citation Nr: 1138513 Decision Date: 10/14/11 Archive Date: 10/19/11 DOCKET NO. 09-03 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to compensation under 38 U.S.C. 1151 for a left knee condition (claimed as due to "botched surgery on left knee with residual scar, limp, pain and discomfort). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from September 1952 to September 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In pertinent part of the June 2008 decision, the RO denied entitlement to compensation under 38 U.S.C. 1151 for a left knee condition. In November 2009 the Board remanded in order to obtain additional VA treatment records and to afford the Veteran a VA examination. It was determined in March 2010 that the Augusta VA Medical Center (VAMC) did not have any additional treatment records and the RO obtained medical opinions in February 2011 and July 2011. Thus, the requested development has been completed and no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The Veteran underwent left knee surgery at a VA facility in April 1963; and subsequently he experienced tuberculosis of the left knee. 3. The Veteran's current diagnosis of arthritis is the result of tuberculosis of the left knee which was not a reasonably foreseeable result of the Veteran's April 1963 left knee surgery. CONCLUSION OF LAW The criteria for compensation for arthritis of the left knee under the provisions of 38 U.S.C.A. § 1151 have been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Here, with regard to the issue herein decided, the decision below is granting in full the benefits sought for the issue of entitlement compensation under 38 U.S.C.A. § 1151. Accordingly, even assuming that an error was committed with respect to either the duty to notify or the duty to assist such error was harmless and will not be further discussed. II. Analysis The Veteran's claim for compensation is premised on 38 U.S.C.A. § 1151. Under that provision, a veteran who suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA medical or surgical treatment, is entitled to compensation in the same manner as if such disability were service connected. Effective for claims received on or after October 1, 1997, an additional disability is a qualifying disability for compensation if it was not the result of the Veteran's willful misconduct, the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the VA, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or was an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). In determining whether a veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after care or treatment is rendered. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a veteran received care or treatment and that the Veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability; 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. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). After a careful review of the Veteran's claims file, the Board finds that the by granting the Veteran the benefit of the doubt compensation under 38 C.F.R. § is warranted. A May 1963 VA hospital summary reveals that the Veteran was hospitalized and had a cyst removed from his left knee in April 1963 at VAMC Augusta. The Board notes that the Veteran was admitted on April 1, 1963 and not discharged until May 29, 1963, with final diagnoses of meniscus cyst of the left knee and toxic bone marrow depression secondary to aspirin intoxication. VA treatment records from May 1963 to December 1963 show that the Veteran was still suffering from a swollen left knee and a December 1963 examiner believed that the Veteran had a tuberculosis infection of the left knee. In a June 1963 treatment note the Veteran's orthopedist called the Veteran "something of a diagnostic enigma." A July 1972 VA hospital summary record (which may have been from the Charleston, South Carolina VAMC) noted that the Veteran had a swollen knee ever since having a cyst removed nine years prior. The Veteran was in the hospital over a week and discharged with a diagnosis of chronic pyarthroma, left knee. An October 1972 VA hospital summary shows the Veteran was admitted in September 1972 and stayed in the hospital over a month. Pathology of a biopsy of the left knee done was suggestive of tuberculosis and/or sarcoid. A 1982 VA examination report noted that x-rays revealed marked degenerative changes and necrosis of the bone, including AP and lateral of the left knee which revealed marked destruction of articular cartilage. The examiner indicated that this was compatible with previous infectious disease, Charcot joint, syphilitic tertiary syphilis and any of the neuropathic casus of Charcot joint. A September 2007 VA treatment record x-ray report indicates that the standing AP and lateral views of the Veteran's left knee demonstrate severe loss of the three joint compartments. There was marked sclerosis and irregularity of the articular surfaces through the knee with medial, anterior and lateral osteophyte formation from the major articular surfaces. The diagnosis was severe three compartment osteoarthritis of the left knee. A September 2010 VA orthopedic consult indicated that the Veteran had an open left knee cyst removal in the military approximately 30 years ago and though he was well healed from the surgery he has had pain ever since the operation and over the last 10 to 15 years it has progressed significantly. He diagnosed the Veteran with severe degenerative joint disease of the left knee with flexion and extension contractures. He opined that it was very reasonable that the Veteran's previous surgery accelerated his arthritis in the left knee. In February 2011 a Nurse Practitioner conducted a VA examination and reviewed the Veteran's claims file, online medical literature, and examined the Veteran. She diagnosed the Veteran with severe three compartment osteoarthritis of the left knee; genus varus deformity of the left knee; left knee scars times two status post surgery; tuberculosis of the left knee which appeared status post surgery most likely from immuntoxicity secondary to aspirin toxicity; and Charcot joint-left knee most likely a residual from tuberculosis of the left knee status post surgery. She stated that the Veteran's left knee disability was degenerative, disabling, and deforming in nature and to a severe extent. She also opined as follows: It is my opinion that it would not be foreseeable that the veteran would develop tuberculosis of the knee and subsequently Charcot's joint, even though bone marrow depression secondary to aspiring intoxication is documented on the admission note in 1962 and it would therefore have been more reasonable to wait to perform the surgery on his left knee cyst since his immune system was compromised. Report of February 2011 VA Examination In July 2011 the Veteran was afforded another VA examination; the VA examiner reviewed the Veteran's claims file and examined the Veteran. He opined as follows: It is my opinion, based on review of the C-File and patients history, that the veterans current knee disability is less likely than not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA. Patient was appropriately admitted and treated initially in 1963 for 58 days. There is a question of what was done during that 58 day admission as all there is to review is the discharge summary. However, based on the discharge summary I render the opinion as above. Again, in 1972 it appears he was also treated appropriately based on the information in his C-file. Unfortunately, secondary to his treatment he has gone to develop severe DJD which is a very common sequelae of multiple knee surgeries, menisectomy, and probable infectious disease of the joint. Report of July 2011 VA Examination After a careful review of the Veteran's claims file the Board finds that by granting the Veteran the benefit of the doubt compensation under 38 U.S.C.A. § 1151 is warranted. As noted above, including in the July 2011 VA examiner's opinion, there is no evidence that the proximate cause of the Veteran's left knee disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; however, the Board finds that compensation is warranted because the Veteran's left knee disability of arthritis caused by tuberculosis of the knee was not an event that was reasonably foreseeable. First, the Board notes that the July 2011 VA examiner did not opine to the foreseeability of the Veteran's knee condition. In addition, the combination of the February 2011 VA opinion with the treatment reports at the time of the Veteran's 1963 surgery show that he was a "diagnostic enigma" and that the tuberculosis was not reasonably foreseeable. After the Veteran's surgery he was thought to have tuberculosis tissue of the knee and slides revealed that it was not tuberculosis; however, after further complications he was diagnosed in December 1963 with tuberculosis of the knee. According to the February 2011 VA examiner the Veteran's tuberculosis of the knee and Charcot's joint was not reasonably foreseeable and it would have been reasonable to wait perform the Veteran's surgery because his immune system was already compromised. In addition, the September 2010 VA physician stated it was reasonable that the Veteran's previous surgery accelerated his arthritis. Thus, the Board finds that the evidence of record is in equipoise and the benefit of the doubt must be given to the Veteran. In addition, the Board notes that there are no other opinions except for the February 2011 VA examiner's opinion, that discuses the reasonable foreseeability of the Veteran's current knee condition as related to his April 1963 surgery. Therefore, compensation under 38 U.S.C.A. § 1151 is warranted. The Board notes that in September 2011 the Veteran's representative stated that the Board erred in not obtaining the VHA quality assurance records. The Board finds that this is a moot contention since compensation under 38 U.S.C.A. § 1151 is herein granted for completeness sake the argument is herein addresses. On April 19, 2011, VA General Counsel 's Office issued VA O.G.C. Prec. Op. No. 1-2011, addressing a number of questions related to whether the Board has the legal authority, in conjunction with deciding a claim for disability benefits under 38 U.S.C. § 1151 , to attempt to secure and review Veterans Health Administration (VHA) quality assurance records for purposes of determining whether the records are privileged so that they may not be released or considered in deciding such a claim for benefits. These questions were raised by the United States Court of Appeals for Veterans Claims (Court/CAVC) in Hood v. Shinseki, 23 Vet. App. 295 (2009). The OGC Opinion held, as a general matter, the governing statutes and regulations do not authorize disclosure of VHA quality assurance records or documents for purposes of adjudicating a claim for benefits. However, because there are very specific requirements in place for designating documents as being a VHA quality assurance record, the duty to assist does require that reasonable efforts be made to request from VHA any quality assurance records or documents that are relevant to a claim, provided the claimant furnishes information sufficient to locate the records or documents and, if VHA denies access to the records and documents on the basis that they are protected by 38 U.S.C. § 5705 and implementing regulations, to appeal VHA's denial to the OGC under 38 C.F.R. § 17.506 . Under 38 C.F.R. § 17.508(c) , any quality assurance record or document, whether confidential and privileged or not, may be provided to the General Counsel or any attorney within OGC, wherever located. If VHA and OGC conclude that the records and documents are protected by section 5705 and implementing regulations, VA may not consider them and rely on them in the adjudication of the claim. If VHA or OGC concludes that the records and documents are not confidential and privileged, VA may consider them in adjudicating the claim. Reading VA O.G.C. Prec. Op. No. 1-2011 (April 19, 2011) in the most liberal sense possible, the Board does not find the authority to request from VHA any relevant quality assurance records or documents unless and until the Veteran first furnishes information sufficient to locate the records or documents. And, here, the Veteran's representative merely has made a blanket, nonspecific, request for quality assurance records, so inherently too general and insufficient to locate any quality assurance records or documents that are potentially relevant to this § 1151 claim. The Board is therefore satisfied that VA has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A . In sum, the Board finds that while there is no evidence that the proximate cause of the Veteran's left knee disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; there is evidence that the Veteran's left knee disability of arthritis caused by tuberculosis of the knee was not an event that was reasonably foreseeable. Therefore, by granting the Veteran the benefit of the doubt compensation under 38 U.S.C.A. § 1151 is warranted. ORDER Compensation under 38 U.S.C. 1151 for a left knee condition is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs