Citation Nr: 1306383	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  13-00 447	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the residuals of treatment provided by a VA Medical Center (VAMC) between August 17, 2010, and August 30, 2010, to include right femur periprosthetic fracture.


REPRESENTATION

Veteran represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel





INTRODUCTION

The Veteran served on active duty in the United States Army from November 1952 to August 1954.  He is the recipient of the Combat Infantryman Badge.

Procedural History

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal.  The Veteran submitted a Notice of Disagreement with this determination in February 2011, and timely perfected his appeal in December 2012.

Hearing

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of the claim.  In his December 2012 Substantive Appeal [VA Form 9] he declined the option of testifying at a personal hearing.

Virtual VA

The Board has also reviewed the Veteran's electronic Virtual VA file.  No additional, relevant documents have been added to the file that require waiver of agency of original jurisdiction consideration.  See 38 C.F.R. § 20.1304 (2012).

Advance on the Docket

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  See 38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

A preponderance of the medical evidence of record supports a conclusion that the residuals of treatment provided to the Veteran by a VAMC between August 17, 2010, and August 30, 2010, to include right femur periprosthetic fracture, were not caused or aggravated by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, nor was such the result of an event not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the residuals of treatment provided by to the Veteran by a VAMC between August 17, 2010, and August 30, 2010, to include right femur periprosthetic fracture, have not been met.  38 U.S.C. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks compensation pursuant to 38 U.S.C. § 1151 for the residuals of treatment provided by to the Veteran by a VAMC between August 17, 2010, and August 30, 2010, to include right femur periprosthetic fracture.

The Board will discuss certain preliminary matters.  The issue on appeal will then be analyzed and a decision rendered.

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Board has given consideration to the VCAA.  The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002).

The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist.  The Board will now address these concepts within the context of the circumstances presented in this case.

Standard of Review

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the veteran.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Notice

The VCAA requires VA to notify the Veteran and the Veteran's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of this notice, VA is to specifically inform the Veteran and the Veteran's representative, if any, of which portion, if any, of the evidence is to be provided by the Veteran and which part, if any, VA will attempt to obtain on behalf of the Veteran.  See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an Veteran describing evidence potentially helpful to the Veteran, but not mentioning who is responsible for obtaining such evidence, did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal.

The Veteran was informed of the relevant law and regulations pertaining to his § 1151 claim in a letter from the RO dated in December 2010.  The RO informed the Veteran of VA's duty to assist him in the development of his claim in the December 2010 letter.  Specifically, the letter stated that VA would assist the Veteran in obtaining any relevant records from any Federal agency, including the military, VAMCs, or the Social Security Administration.  With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain such records.  The letter also indicated that a medical examination or opinion would be provided if necessary to make a decision on the Veteran's claim.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim.  Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  The Veteran was also provided with Dingess notice in the December 2010 notice letter.  

Accordingly, the Veteran received proper notice as to disability rating and effective date pursuant to the Court's Dingess determination.  Moreover, in this case, elements (1) and (2) are undisputed, and element (3) is irrelevant.  Additionally, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of benefits pursuant to 38 U.S.C. § 1151.  In other words, any lack of advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned.  Because, as will be detailed below, the Board is denying the Veteran's claim, element (4) and (5) remain moot.

Because there is no indication that there exists any evidence, which could be obtained to affect the outcome of this case, no further VCAA notice is necessary.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran].

Duty to Assist

In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating the claim.  The evidence of record includes the Veteran's service treatment records, VAMC and private treatment records, and a private medical opinion

Additionally, the Veteran was provided with a VA medical opinion in December 2010.  The VA medical opinion reflects that the examiner thoroughly reviewed the Veteran's past medical history, documented his current medical conditions, reviewed pertinent medical research, and rendered an appropriate opinion consistent with the remainder of the evidence of record.  The Board therefore concludes that the VA medical opinion is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate].  The Veteran and his representative have not contended otherwise.

In summary, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of this issue has been consistent with said provisions.

The Board also observes that all due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has retained the services of a representative, who has presented argument on his behalf.

Accordingly, the Board will proceed to a decision as to the issue on appeal.

II.  The Merits of the Claim

Relevant Law and Regulations

Statutory Law

In pertinent part, 38 U.S.C. § 1151 reads as follows:

"(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected.  For purposes of this section, a disability or death is a qualifying disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and -

"(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) careless, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable."

VA Regulations

Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C. § 1151 filed on or after October 1, 1997 [such as this case, in which the Veteran's § 1151 claim was filed in December 2010] were amended.  See 69 Fed. Reg. 46,426 (Aug. 3 2004) [codified as amended at 38 C.F.R. § 3.361].  Those regulations largely implemented the provisions of 38 U.S.C. § 1151.

(i.)  Additional disability

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 such care or treatment.  See 38 C.F.R. § 3.361(b) (2012).  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 cause.  See 38 C.F.R. § 3.361(c)(1) (2012).

Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or 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.  See 38 C.F.R. § 3.361(c)(2) (2012).

(ii.)  Carelessness, negligence, etc.

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; 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.  See 38 C.F.R. § 3.361(d)(1) (2012).

(iii.)  Foreseeability

Whether the proximate cause of a veteran's additional disability or death 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.  See 38 C.F.R. § 3.361(d) (2012).

Factual Background

The Board believes that a brief factual background is appropriate.

On August 11, 2010, the Veteran was admitted to a private medical facility (F.S.H.) after falling and injuring his right hip.  Radiographic reports established that the Veteran suffered a fracture of the femoral neck of his right hip with some angulation.  On August 12, 2010, the Veteran underwent a right hip hemiarthroplasty.  Post-surgery treatment records indicate the Veteran ambulated well with a walker and had decreased right hip pain.  On August 17, 2010, the Veteran was transferred from F.S.H. to the VAMC in Tomah, Wisconsin, for rehabilitation.
Between August 17, 2010, and August 30, 2010, the Veteran participated in physical therapy at the Tomah VAMC.  At some point during his admission, the Veteran experienced significant additional right hip pain.  He was readmitted to F.S.H. on August 30, 2010, where further radiograph reports indicated that he had suffered a right femur periprosthetic fracture.  He subsequently underwent revision of the right hip implant on September 3, 2010.

Analysis

The Veteran seeks compensation pursuant to 38 U.S.C. § 1151 for the residuals of treatment provided by to him by the Tomah, Wisconsin, VAMC between August 17, 2010, and August 30, 2010, to include right femur periprosthetic fracture.

As was discussed in the law and regulations section above, in order to substantiate a claim under 38 U.S.C. § 1151, the evidence must show that VA treatment caused additional disability, and that such was the result of either negligence or carelessness on the part of VA or an event not reasonably foreseeable.

The question of whether the Veteran has additional disabilities and whether such are related to his VAMC treatment between August 17, 2010, and August 30, 2010, is essentially medical in nature, as are the matters of negligence, etc, and foreseeability.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

With respect to these questions, a VA medical opinion was obtained in December 2010.  The VA physician indicated that the Veteran's claims file and associated electronic records were reviewed in conjunction with the opinion.  The VA physician noted that the Veteran had sustained a right femoral neck fracture on August 11, 2010.  J.E.M., M.D., of F.S.H., performed a right hip bipolar hemiarthroplasty on August 12, 2010.  The Veteran was subsequently transferred to the Tomah VAMC for rehabilitation.  According to Dr. J.E.M.'s notes, the Veteran did well up until four days prior to his second admission to F.S.H. for additional medical treatment.  Radiographs revealed a periprosthetic fracture of the Veteran's right femur, spiral type, at the tip of the prosthesis.  This was subsequently revised by a long stem total hip arthroplasty with a side plate.  According to Dr. J.E.M.'s note, the Veteran was at the Tomah VAMC for rehabilitation when he was placed on an exercycle and felt a snap and had sudden onset of pain in his right leg.  See VA Medical Opinion Report, December 29, 2010.

It was noted that according to the VA kinesiotherapy treatment note dated August 26, 2010, the Veteran complained of no pain that day.  The Veteran came in by wheelchair and then walked over to the machine, 5 steps, and sat down.  He placed more weight on his left side than his right side.  The Veteran's strength was noted to be very poor.  He moved his right leg very slowly and had a hard time lifting his right leg on his own.  He worked with very light resistance, stepping off a total of 260 steps for an average of 26 steps per minute.  Nursing notes did not indicate any ambulation.  Id.

On August 27, 2010, a VA physical therapy note indicated that the Veteran presented in a wheelchair, with complaints of right hip pain, rating it four to five out of ten at the inside of his thigh/groin area.  He was able to transfer, sit to stand, with moderate assistance, and was able to move forward in the chair.  He stood for two minutes with a front-wheeled walker with contact assistance.  The Veteran noted that he thought his right hip was irritated when he stepped off the exercise machine approximately 15 to 20 minutes before, reporting that he was not sure how much he could do and reported exercises were easier lying down than sitting in a chair.  The available treatment records did not indicate how much weight the Veteran put on his right leg.  He was able to perform wheelchair pushups, but there was no indication that he took any steps.  Id.

On August 28, 2010, nursing notes indicated bed mobility, but not ambulation.  It was noted that the Veteran was in too much pain to walk.  He reported right knee pain, and stated that he had noticed this pain that day.  He stated that he had occasional sharp pain in his right knee, depending on how he moved.  The knee was noted to be swollen.  There was no pain on light palpitation and no bruising.  He was able to stand and pivot on his left leg with the assistance of two staff members.  He had discomfort in his right leg that was short lived once he stopped moving.  He used pain medication as needed with good relief.  Id.

On August 29, 2010, a nursing note indicated an enlarged right knee with no pain or discomfort.  No bruising was noted and strong pulses were evident.  The Veteran stated that he had a pain shoot up from his knee to his hip when he maneuvered on his right leg.  He also noted that he felt a "clunk" when he stepped on his right foot.  The Veteran's right leg was elevated and ice was applied to his right knee.  His vitals were normal and he did not ambulate that day.  On August 30, 2010, nursing notes indicated that the Veteran did not ambulate and stated that his right hip was very painful.  Radiographs were taken by Dr. J.E.M. at F.S.H., indicating a right femur periprosthetic fracture.  Though these radiographs were not available to the VA physician, he noted that multiple notes in the record stated that the Veteran had a spiral fracture at the distal aspect of his hemiarthroplasty.  Id.

The VA physician noted that it appeared the Veteran sustained a periprosthetic right femur fracture, most likely sometime between August 26, 2010, and sometime on August 28, 2010.  As noted above, the last notation indicating the Veteran was able to ambulate was on August 26, 2010.  Subsequent notes did not note any steps and did begin to note pain, swelling of the right leg and inability to ambulate.  Per Dr. J.E.M.'s notes, the Veteran felt a snap and onset of pain while being placed on an exercycle at the Tomah VAMC.  A physician's assistant note, dated on September 1, 2010, indicated the Veteran had thought back and believed that his femur fracture probably occurred sometime during the week before, either on August 25, 2010 or August 26, 2010, during physical therapy at the VAMC.  He stated that he was using some machinery, sat down and had to turn the seat to get into the machine.  He stated that he thought the pedals were too high for him to get into it with his hip precautions, but he tried, and he told the physical therapist that he could not move his right leg but was advised to try.  He stated that he put his feet on the pedals and later that evening it was noted "[m]y right foot looked crooked and my right knee was quite swollen."  However, according to the September 1, 2010, note, the Veteran did not alert the staff of these changes, nor did he alert his physical therapist.  Id.

The VA physician stated that the Veteran did suffer from a periprosthetic fracture, which resulted in another hospitalization, subsequent major surgery and a subsequent long hospital stay with cardiac complications.  The VA physician noted that he was not involved in the Veteran's care, nor was he present during the Veteran's physical therapy sessions.  As such, he could not state with certainty any causative features without resorting to speculation.  It was only noted with certainty that the Veteran was not ambulating and did not have significant pain on August 26, 2010.  Soon after, he started to complain of knee pain, thigh pain and swelling.  There was no further evidence of ambulation from August 27, 2010 to August 30, 2010.  The periprosthetic fracture was identified on August 30, 2010.  While the Veteran stated that his fracture occurred during physical therapy at the VAMC, the VA physician stated that the physical therapy notes do not state that this occurred.  The August 27, 2010, therapy note stated that the Veteran had pain in the right hip, and he stated that it was irritated when he stepped off an exercise machine, and it did not appear that he ambulated during that session.  Id.

The VA physician opined that it appeared that the Veteran had some sort of change in his condition late in the month of August 2010 while at the Tomah VAMC.  It was not clear exactly when this occurred based on review of the records, nor was it clear how this occurred.  The Veteran stated that he had increased pain while trying to get on an exercise machine.  The VA physician stated that there were no signs of gross negligence, carelessness or lack of skill or fault by VA personnel.  It appeared that they were performing appropriate therapy for hip fracture/arthroplasty rehabilitation, including taking appropriate hip precautions.  It was also noted that it was not reasonably foreseeable that a femur fracture would occur from trying to sit on an exercise bicycle.  This additional disability of a femur fracture resulted from an event that, in the VA physician's opinion, would not have been reasonably foreseen by a reasonable healthcare provider.  It was not reasonably foreseeable that doing normal therapy, such as stepping on to an exercise bicycle, would cause a femur fracture after hemiarthroplasty.  Periprosthetic femur fractures were considered not unforeseeable events, as these were known to occur after hip replacements.  The incidence was noted as low, and was usually but not always, related to a fall.  Id.

The Veteran's swelling and pain was noted in the medical records one to two days prior to his radiographs of August 30, 2010, which demonstrated the femur fracture.  The Veteran's pain and inability to stand was noted on an August 29, 2010, nursing note, which also discussed the Veteran's enlarged right knee.  The note also indicated that the Veteran reported feeling a "clunk" when he stepped with his right leg and that his provider would be notified.  There was no definitive evidence that the Veteran's provider was or was not alerted to this on August 29, 2010.  Based on the August 28, 2010, nursing note, which indicated right knee swelling with occasional sharp pains depending on how the Veteran moved and his need for significant assistance to get back into bed, the VA physician opined that there was potentially a one to two day delay in diagnosis of his femur fracture, although this could not be definitively stated without resorting to speculation as the first radiographs revealing the fracture were taken on August 30, 2010.  It was also noted that the Veteran had pain that appeared to be fairly new, but he also had some baseline arthritis in his knee and knee pain at baseline.  Id.

In response to the question of whether there was a failure on the part of VA to timely diagnose and/or properly treat the femur fracture that would have allowed the disability to continue to progress, the VA physician stated that a one to two day delay in diagnosing the femur fracture was not ideal.  Nevertheless, the VA physician could not state with certainty that a delay resulted in any further morbidity, as the Veteran would have required the revision surgery regardless of whether the fracture was discovered on August 28th, 29th, or 30th.  If the Veteran's fracture was diagnosed two days after it occurred, the Veteran would have had two more days of pain and immobility that did have some morbidity associated therewith.  The VA physician could not state exactly how much this delay did cause morbidity to the Veteran or would have caused morbidity without resorting to speculation.  Regardless however, based upon review of the relevant records, the VA physician found that there was no evidence of fault on the part of VA.  It was also noted that while a periprosthetic femur fracture was not commonly expected after a hemiarthroplasty, it was a known infrequent complication thereof.  Ultimately, the VA physician concluded that the fracture was unrelated to any error on the part of the Tomah VAMC.  Id.

Specifically, the VA physician commented that arthroplasty and hemiarthroplasty did carry a risk of periprosthetic fracture post-operatively.  The VA physician stated that it did not appear that the physical therapy undertaken by the Veteran, including getting on to or off of an exercise cycle, would have likely caused any undue torque or forces across his leg that would be foreseen as a fracture.  As an orthopedist, the VA physician stated that he would not have feared the Veteran stepping onto a cycle.  While the VA physician noted that he was not present during the Veteran's physical therapy to definitively state whether or not there was negligence in protecting the Veteran from catching his foot and causing a torsional effect to his leg, the record did not reflect that this occurred.  Id.

Conversely, a private medical opinion from the Veteran's treating physician (J.E.M., M.D.) was submitted in January 2011.  Dr. J.E.M. noted that he had reviewed the December 2010 VA medical opinion.  The Veteran's medical history, as detailed above, was also summarized.  After review of this evidence, Dr. J.E.M. stated that it did not appear that the Veteran fell after his initial right hip surgery.  Rather, he was doing well from the time of his surgery (on August 12, 2010) until approximately August 24, 2010, and was actually ambulating and making progress.  As a result, Dr. J.E.M. was unable to state that the Veteran had demonstrated any evidence of a periprosthetic fracture during that time.  It was then noted that the Veteran became symptomatic on or about August 24, 2010, when he was on an exercise bicycle.  Subsequent radiographs revealed a femoral fracture about the prosthesis and the Veteran was unable to walk after that incident.  Accordingly, Dr. J.E.M. determined that the Veteran sustained a periprosthetic fracture on or about August 24, 2010.  Dr. J.E.M. also commented that, in terms of treatment for an individual of the Veteran's age, riding an exercise bicycle so soon after surgery was very aggressive physical therapy, which he would not have advised.  See Private Medical Opinion, J.E.M., M.D., January 27, 2011.

Affording the Veteran the full benefit of the doubt, in conjunction with the VAMC and private hospitalization reports dated in August 2010 and September 2010, the Board finds that both the December 2010 VA medical opinion report and the January 2011 private medical opinion are consistent with the contemporaneous treatment records, which document the Veteran's complaints of right hip pain following his physical therapy in late August 2010.  The Board thus concludes that an additional disability, namely the periprosthetic right femur fracture, was incurred during the Veteran's admission to the Tomah VAMC from August 17, 2010, to August 30, 2010.

The Board must now determine whether such additional disability is due to carelessness, negligence, etc. on the part of VA; or whether such additional disability is the result of an event, which was not reasonably foreseeable.

In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa.  See 38 U.S.C.A. § 5125 (West 2002); White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits).  Regardless of the source, an examination report must minimally meet the requirement of being sufficiently complete to be adequate for the purpose of adjudicating the claim.  See 38 U.S.C.A. § 5125 (West 2002); 38 C.F.R. § 4.2 (2012).

The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  See Sklar v. Brown, 5 Vet. App. 140 (1993).

A medical examiner's review of the claims folder may heighten the probative value of an opinion, as the claims folder generally contains all documents associated with a veteran's disability claim, including not only medical examination reports and service treatment records, but also correspondence, raw medical data, financial information, RO rating decisions, Notices of Disagreement, materials pertaining to claims for conditions not currently at issue and Board decisions disposing of earlier claims.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  However, an examiner's review of the claims folder is not required in each case.  See Snuffer v. Gobber, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination); see also D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history).

A significant factor to be considered for any opinion is based on an accurate factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

The Board finds that the private medical opinion submitted by Dr. J.E.M. does not 
meet the requirement of being sufficiently complete to be adequate for the purpose of adjudicating the claim.  See 38 U.S.C.A. § 5125 (West 2002); 38 C.F.R. § 4.2 (2012).  Dr. J.E.M. did not specifically state that the Veteran's periprosthetic fracture was the result of carelessness, negligence, etc. on the part of VA.  Rather, he commented that in his opinion, in terms of treatment for a patient of the Veteran's age, riding an exercise bicycle so soon after his hemiarthroplasty, was very aggressive.  Dr. J.E.M. then specified the physical therapy that he thought was appropriate for the Veteran.  As such, the Board does not find this opinion to be probative evidence of carelessness, negligence, etc. on the part of VA.  Additionally, it does not appear that Dr. J.E.M. opined as to whether the Veteran's periprosthetic fracture was reasonably foreseeable.  As these two inquiries are pivotal to the award of compensation under 38 U.S.C. § 1151, the Board does not find that the private medical opinion of record is based on a review of the relevant evidence, provides a relevant and supported conclusion, or addresses the inquiries relevant to award compensation under 38 U.S.C. § 1151.  As such, it is afforded limited probative value.

Conversely, the December 2010 VA medical opinion was based on a thorough review of the relevant evidence of record.  While the Board is aware of the VA physician's focus on August 26, 2010, as the date of the Veteran's alleged injury, as opposed to the date of August 24, 2010, reported by the Veteran, this inconsistency is irrelevant.  The medical evidence has established that the Veteran did suffer from an additional disability as a result of his treatment by VA.  The remaining relevant inquiries are whether the Veteran's subsequent periprosthetic fracture was the result of carelessness, negligence, etc. by VA or whether or not it was reasonably foreseeable.  The VA physician stated that there was no evidence of carelessness, negligence, or otherwise on the part of the VA staff.  Further, it was noted that while not common, arthroplasty and hemiarthroplasty carried a risk of periprosthetic fracture post-operatively.  The VA physician provided a thoroughly supported opinion and thus, this report is afforded great probative weight.  See Sklar, supra.

The only remaining evidence in support of the Veteran's claim consists of lay statements.  The Veteran as a lay person is competent to offer an opinion on a simple medical condition.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer)).  Competency is a question of fact, which is to be addressed by the Board.  See Jandreau at 1377.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  See 38 C.F.R. § 3.159 (2012); Layno v. Brown, 6 Vet. App. 465, 69 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.)

Whether the Veteran's periprosthetic fracture was the result of carelessness, negligence, etc., or unforeseeable, cannot be determined by the Veteran based on his perceived observations.  See 38 C.F.R. § 3.159 (2012).  Further, it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience in health care to offer an opinion on fault on the part of VA regarding the standard of care of a reasonable health care provider or foreseeability of his fracture, which are factors in determining entitlement to compensation benefits under 38 U.S.C. § 1151.

For these reasons, the Board rejects the Veteran's lay opinion as competent evidence to substantiate the claim on the question of fault of the part of VA.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  See 38 C.F.R. § 3.159.

Having carefully considered the evidence pertaining to the Veteran's claim, the Board concludes that the legal requirements are not met for compensation under 38 U.S.C.A. § 1151.  Simply put, the greater weight of the probative evidence is against finding that he suffered additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the residuals were not reasonably foreseeable.  The claim fails on this basis.

In summary, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for the residuals of treatment provided by a VAMC between August 17, 2010, and August 30, 2010, to include right femur periprosthetic fracture.  The benefit sought on appeal is accordingly denied.


ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for the residuals of treatment provided by a VAMC between August 17, 2010, and August 30, 2010, to include right femur periprosthetic fracture, is denied.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs