Citation Nr: 1307663 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 07-14 085 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to 38 U.S.C.A. § 1151 VA compensation for left knee instability, status post total knee arthroplasty (TKA) performed at the Indianapolis, Indiana, VA Medical Center (VAMC) on March 6, 2003. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1964 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in July 2012, which by incorporating the terms of a joint motion for remand vacated a January 2012 Board decision and remanded the issue on appeal for additional development. The appeal initially arose from a January 2006 rating decision by the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). Although statements from the Veteran dated as signed in January 2012 were received by VA in March 2012 and the Veteran refused waiver of RO consideration of those statements, the provided statements merely reiterate her claims previously presented and considered by the RO. As no additional pertinent evidence was received, no further action is required prior to appellate review. But see 38 C.F.R. § 20.1304(c) (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Instability subsequent to a TKA is shown to be a small risk to anyone undergoing a total knee replacement and not a reasonably foreseeable associated risk for which identification and explanation was required for an informed consent for VA purposes by the practitioner prior to the TKA performed on March 6, 2003; any failure to explicitly advise the Veteran of the small risk of instability from a TKA is considered to be a minor, immaterial deviation because a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the risk. 2. Left knee instability, status post TKA, was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA associated with the left TKA performed at the VAMC on March 6, 2003, and was not caused by an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for left knee instability, status post TKA performed at the Indianapolis VAMC on March 6, 2003, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her claim filed in March 2005 by correspondence dated in May 2005, March 2006, and August 2007. VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Board observes that the Veteran's VA medical records pertaining to her treatment and surgery for a TKA of her left knee at the Indianapolis, Indiana, VA Medical Center on March 6, 2003, have been obtained and associated with the claims file. The development requested in a May 2010 Board remand has been substantially completed. The X-ray films of her left knee that were obtained per the TKA procedure are shown to have been obtained and reviewed by a VA examiner in March 2011. Further, the Veteran's private, Social Security Administration (SSA), and VA medical records regarding her post-surgical treatment have been obtained and associated with the claims file. These records are the only ones of relevance to the matter at issue, as the Veteran's primary assertion is that she developed additional disability as a result of her left knee surgery at VA in March 2003. In any case, the Veteran has not indicated that there are any outstanding relevant medical records or other pertinent evidence that must be considered in this current appeal with respect to the issue decided on the merits herein. Although in correspondence received by VA dated in January 2012 the Veteran asserted she had requested copies of the medical records associated with her TKA and had received records without "surgical notes," there is no indication that any such records actually exist. An October 2008 VA statement included in the available record indicates that the provided copies were the true and complete reproductions of the original VA hospital medical records for the period from January 2003 to April 2003. In her January 2012 statements the Veteran also noted that she planned to see her private orthopedic surgeon again for another opinion; however, she did not provide any subsequent additional evidence nor did she respond to an August 2012 Board notice explaining that she had 90 days to submit additional evidence in support of her appeal. In statements in support of her appeal, including a handwritten statement received by VA in May 2004 and during personal hearing testimony in October 2007, the Veteran asserted that VA physicians, T.L.W., M.D., and R.M., M.D., had stated the prosthesis in her left knee was too small and that the surgeon should have used a different prosthesis. The Veteran does not assert and there is no indication that these statements were included in a VA record. Based upon the evidence of record and the absence of any response subsequent to the August 2012 notice, the Board finds that further attempts to obtain additional evidence would be futile. VA has obtained Veterans Health Administration (VHA) medical expert opinions in February 2010 and September 2011, as well as a VA medical opinion in March 2011, which specifically address the § 1151 claim at issue. The opinions are predicated on a review of the Veteran's relevant clinical history as contained in her claims file. Furthermore, the opining examiners provided adequate discussion of their clinical observations and a rationale to support their findings and conclusions. Thus, the opinions of February 2010, March 2011, and September 2011, when collectively viewed as a whole, are deemed to be adequate for adjudication purposes for the matter at issue. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Based on the foregoing, the Board finds that the VA fulfilled its duties to notify and to assist the Veteran in the evidentiary development of her § 1151 claim decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and her procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Entitlement to compensation under 38 U.S.C. § 1151 for left knee instability, status post TKA performed at the Indianapolis, Indiana, VAMC on March 6, 2003. Effective October 1, 1997, 38 U.S.C.A. § 1151 was amended by the United States Congress. See § 422(a) of PL 104-204. The purpose of the amendment was, in effect, to overrule the United States Supreme Court decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence was necessary for recovery under § 1151. In pertinent part, Section 1151, as amended, reads as follows: 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 additional 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) carelessness, 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. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation 38 C.F.R. § 3.361 implements 38 U.S.C.A. § 1151. 38 C.F.R. § 3.361(b) states that 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, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(c) states that claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 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 § 17.32 of this chapter. 38 C.F.R. § 17.32 provides for informed consent and advance care planning and under subsection (a) defines decision-making capacity as the ability to understand and appreciate the nature and consequences of health care treatment decisions and defines practitioner as any physician, dentist, or health care professional who has been granted specific clinical privileges to perform the treatment or procedure. For the purpose of obtaining informed consent for medical treatment, the term practitioner includes medical and dental residents and other appropriately trained health care professionals designated by VA regardless of whether they have been granted clinical privileges. The term signature consent is defined as the patient's or surrogate's signature on a VA-authorized consent form. 38 C.F.R. § 17.32(b) states that, except as otherwise provided in this section, all patient care furnished under title 38 U.S.C. shall be carried out only with the full and informed consent of the patient or, in appropriate cases, a representative thereof. In order to give informed consent, the patient must have decision-making capacity and be able to communicate decisions concerning health care. If the patient lacks decision-making capacity or has been declared incompetent, consent must be obtained from the patient's surrogate. Practitioners may provide necessary medical care in emergency situations without the patient's or surrogate's express consent when immediate medical care is necessary to preserve life or prevent serious impairment of the health of the patient or others and the patient is unable to consent and the practitioner determines that the patient has no surrogate or that waiting to obtain consent from the patient's surrogate would increase the hazard to the life or health of the patient or others. In such circumstances consent is implied. 38 C.F.R. § 17.32(c) states the general requirements for informed consent. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(d) addresses the documentation of informed consent and states that: (1) The informed consent process must be appropriately documented in the health record. In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that: (i) Require the use of sedation; (ii) Require anesthesia or narcotic analgesia; (iii) Are considered to produce significant discomfort to the patient; (iv) Have a significant risk of complication or morbidity; or (v) Require injections of any substance into a joint space or body cavity. The Court in McNair v. Shinseki, 25 Vet. App. 98, 107 (2011), held that, given the regulatory text and structure as well as the history of the promulgation of 38 C.F.R. § 3.361(d)(1)(ii) and the general common law understanding of informed consent, a failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. In the instant case, 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 left knee instability, status post TKA performed at the Indianapolis, Indiana, VAMC on March 6, 2003. Instability subsequent to a TKA is shown to be a small risk to anyone undergoing a total knee replacement and not a reasonably foreseeable associated risk for which identification and explanation was required for an informed consent for VA purposes by the practitioner prior to the TKA performed on March 6, 2003. The Board finds that any failure to explicitly advise the Veteran of the small risk of instability from a TKA is considered to be a minor, immaterial deviation because a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the risk. The Veteran's left knee instability, status post TKA, was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA associated with the left TKA performed at the VAMC on March 6, 2003, and was not caused by an event that was not reasonably foreseeable. The available record as to the Veteran's relevant clinical history shows that prior to active service, in 1956, she sustained a left knee injury while engaged in athletics and underwent surgical removal of her left medial meniscus. Aggravation of the pre-existing left knee condition by military service is neither indicated nor at issue in the current appeal. The Veteran's left knee grew increasingly symptomatic later in life and by 2003 she was diagnosed with severe osteoarthritis, which did not respond to conventional therapy. VA records show anterior horn lateral meniscus and anterior and posterior horn medial meniscus tears, a likely tear of her left anterior cruciate ligament, and severe patellofemoral osteoarthritis on magnetic resonance imaging (MRI) study of her left knee in August 2000. She underwent surgery on March 6, 2003, for replacement of the left knee joint with a Smith & Nephew Genesis II prosthesis. (Although the March 6, 2003 procedure involved bilateral TKAs, the focus of this analysis will be directed only towards the left knee. The Veteran has explicitly stated in correspondence dated in December 2005 that her current § 1151 claim pertains only to her left knee.) VA medical records pertaining to the left TKA procedure of March 6, 2003, show that prior to the procedure, the risks and benefits of a TKA were discussed with her at length, after which she expressed her desire to undergo this elective surgical procedure and her informed consent to proceed with surgery was obtained. The specific risks discussed included pain, infection, nerve, muscle, and soft tissue damage, death, further surgery, and loose worn hardware. The report noted there were no alternatives and that the Veteran was provided an opportunity to ask questions and to indicate her understanding of the discussion. The Veteran acknowledged that she understood the nature of the proposed procedures, attendant risks involved, and expected results. VA records following the Veteran's left knee surgery include a March 29, 2003, VA compensation and pension examination report which noted she indicated she was recuperating quite well. Physical examination of the bilateral lower extremities revealed 5/5 strength with increasing pain on knee range of motion which was normal for postoperative residuals at that point. The knees were stable to varus and valgus stress in full extension. It was noted that the radiographs performed on March 6, 2003, and March 21, 2003, showed well-aligned TKA components. A July 2003 X-ray examination report noted the hemi-prostheses appeared to be intact and in anatomic alignment. There was no evidence of prosthetic loosening. The examiner's impression was status post bilateral TKA without radiographic evidence of complication. A diagnosis of small bilateral effusions was also provided. An October 2003 VA treatment report noted the Veteran complained of pain while walking up and down stairs and while sitting down. The examiner noted there was pain with patellar pressure and with range of motion. X-ray studies revealed well placed components with a small amount of lateral subluxation to the bilateral patellae. The physician recommended straight leg raise exercises three times per day and return to the clinic in six months. It was noted that she may need patellar arthroplasty in the future if she did not improve with strengthening. A January 20, 2004, VA treatment report noted complaints of anterior pain to the knees which increased with climbing stairs and rising from a chair. The Veteran reported her pain was better than before surgery, but that she was frustrated by continued pain and swelling. She stated she walked two to three miles per week. The examiner noted swelling to the anterolateral joint lines, bilaterally, and tenderness to palpation of the bilateral patellar tendons and medial and lateral joint lines. The examiner noted a 15 degree varus/valgus sign to the left knee. The Veteran was advised to continue quadriceps strengthening and walking. An X-ray examination report dated January 20, 2004, revealed stable bilateral patellar lateral displacement and stable anatomic alignment of bilateral TKA. In an orthopedic consult report dated March 30, 2004, Dr. T.L.W. noted the Veteran was one year status post bilateral TKA with continued pain and instability on the left. It was noted the Veteran had a recent twisting injury to the right knee. There was an increased varus/valgus sign on the left with instability. X-ray studies revealed good alignment without resurfacing. The treatment plan included a brace for stability and conversion to a semiconstrained knee on left. Dr. T.L.W. stated she might need bilateral patellae resurfacing if there was no improvement. An X-ray examination report dated March 30, 2004, noted the orthopedic hardware appeared intact without evidence of loosening and alignment of the knees remained anatomic. On Merchant's view there was mild subluxation of the patellae, bilaterally. The soft tissues around the knees were unremarkable. The examiner's impression included stable alignment of the knees. VA compensation and pension examination in May 2004 found the Veteran had done extremely poorly after bilateral knee replacements. It was noted that she reported that since her March 2003 TKA she had continued to do poorly and had varus/valgus instability on the left knee. VA treatment records include a June 2004 note from Dr. R.M. who reported the Veteran had pain every day and episodes of giving way. There were bruises on her right where she fell after one of the left knee instabilities. An examination revealed exquisite pain to palpation at 15 to 20 degrees with varus and valgus stresses. X-ray studies revealed non-resurfaced patellae. It was felt that the appellant would need additional surgery for a left patella resurfacing and possibly even a full revision of the left TKA. An X-ray examination report dated July 20, 2004, noted the examiner's impression included stable bilateral knee prostheses without evidence of hardware loosening or other complication. The Veteran's claim for entitlement to compensation for an additional left knee disability under the provisions of 38 U.S.C.A. § 1151 was received by VA on March 23, 2005. In statements and testimony in support of her claim she asserted that she had instability in the left knee as a result of VA error in her March 6, 2003, TKA. In various statements, including an April 2007 handwritten statement, she asserted that there had been four errors during the TKA including an error in judgment in using the wrong type of prosthesis for an unstable knee, an error in judgment in failing to resurface the patella, an error in judgment in failing to replace the patella in correct alignment with the knee, and an error in judgment in failing to follow her post surgical care and recovery and insure that she received the care and rehabilitation she had been assured she would receive. Her statements also indicate that she had been advised by her VA and private medical care providers to undergo another TKA, but that for several reasons, including the advice of her private orthopedic surgeon, she had not had another TKA. An October 2005 VA compensation and pension examination report noted the Veteran had mild varus/valgus instability of the left knee of no more than four millimeters. She did not have loosening of the total left knee prosthesis. X-ray studies revealed no loosening of the bilateral knee prostheses. The examiner's diagnoses included chronic pain in the left knee joint and severe degenerative osteoarthritis, status post total left knee prosthesis placement in March 2003. Several letters were obtained from the appellant's private orthopedist, E.S.L., M.D., who stated in August 2005 that his clinical findings revealed that the Veteran's left TKA was performed without resurfacing of the patella, which was noted to be riding laterally in the patellofemoral groove. Dr. E.S.L. noted that the prosthesis itself was placed in a manner such that the joint line was raised, which he opined may cause more patellar instability. The recommendations of Dr. E.S.L. included a surgical revision of the left TKA with patellar resurfacing and replacement of the existing prosthesis with a constrained condylar knee (CCK) prosthesis. In additional letters dated in September 2006, Dr. E.S.L. opined that the Veteran's pain and marked medial and lateral instability of her left knee were "probably (due) to the fact that her patellofemoral joint was not replaced [i.e., resurfaced] and that her prosthesis was placed with poor stability of the knee." The commentary of Dr. E.S.L. and the Veteran's assertions raised the following questions, which were addressed by a VHA medical expert in February 2010: (1.) In view of the appellant's clinical history, including the likely presence of a tear of her left anterior cruciate ligament as noted on MRI study in August 2000, and clear evidence of marked medial and lateral instability of the left knee, status-post the March 6, 2003, left TKA, was there carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on part of VA healthcare providers who performed the March 6, 2003 left TKA in their decision to use to a Smith & Nephew Genesis II prosthesis instead of a CCK or similar type of prosthesis as recommended by Dr. E.S.L.? In response to the above question, the February 2010 opinion of the VHA medical expert noted that prior to the March 6, 2003 left TKA, an MRI of the left knee joint revealed only a deficiency of the left anterior cruciate ligament, but no deficiencies were noted with regard to the adjacent medial or collateral ligaments of the left knee. The VHA expert presented the following answer, which states in pertinent part: In view of the [Veteran's] clinical history, as well as the report of the [August 2000] MRI study, I have no evidence to suggest that the [Veteran] had any kind of medial or lateral collateral ligament instability that would require the surgeon to perform a more constrained CCK or similar type of prosthesis. (2.) Was there carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on part of VA healthcare providers who performed the March 6, 2003 left TKA in not replacing the appellant's left patellofemoral joint? (3.) Was there carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on part of VA healthcare providers who performed the March 6, 2003 left TKA in not resurfacing the appellant's left patella? With respect to the above questions, the February 2010 VHA medical expert opinion stated, in pertinent part: I will answer. . . questions [2 and 3] together because they are one and the same. The resurfacing of the patella is what is referred to as replacing the patellofemoral joint. In this case, the surgeon elected not to resurface the patella. [Citing two recently published studies in the Journal of Bone and Joint Surgery dated 2005 and 2009,] these studies conclusively show. . . that it is not. . . necessary to replace the patellofemoral joint or resurface the patella during a total knee arthroplasty and the outcomes are the same whether the patella has been resurfaced or not. Therefore, I believe that there was no carelessness, negligence, lack of proper skill, error in judgment, or any similar instance on the part of the VA healthcare provider who performed the March 6, 2003 left total knee arthroplasty. To address the merits of the Veteran's assertions of fault on part of VA, her claims file and all relevant records associated with her March 2003 TKA and subsequent treatment for her left knee were reviewed by a VA physician in March 2011. Based on his review, the physician expressed the following opinion: [Upon review of the treatment records and medical imaging reports pertaining to the Veteran's left knee], I do not [note] any significant joint line changes. [T]he patella was not resurfaced, which would not be considered a deviation from the standard of care. The poly inserts utilized on the left knee is [sic] [arranged in a manner] indicating symmetry between both knees and similar bone resection. Regarding the stability of [the] knees, an exam dated March 29, 2003. . . indicates both knees are stable to varus and valgus stress in full extension with a range of motion. . . indicating in the immediate post-operative recovery [that] the [Veteran] was doing well. I find no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on part of the health care providers who performed the left total knee arthroplasty [on] March 6, 2003. From the chart review, I do not believe the surgical treatment of March 6, 2003 caused the Veteran additional disability to her left knee. I do not believe the VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In a statement dated September 2011, a VHA medical expert reviewed the Veteran's claims file and presented the following opinion, which states in pertinent part: [With respect as to whether or not a higher level of constraint should have been used during the left TKA of March 2003, including the choice of prosthesis used, after reviewing the record] I am inclined to think that the [left] knee was stable [in the operating room during the March 2003 TKA] and [later] became unstable. Accepting [this], I do not think that a higher level of constraint should have been used in this case. As a result, I do not see that there was carelessness, negligence, lack of proper skill, error in judgment, or any obvious fault in choosing not to increase the level of constraint with the [Veteran's] left total knee arthroplasty. [As for the VA surgeon's decision not to perform a patellofemoral joint replacement (a.k.a. patellar resurfacing) on the Veteran during her March 2003 left TKA], not resurfacing the patella is a subject of debate in the orthopedic community but it is certainly within the standard of care. [There] was no carelessness, negligence, lack of proper skill, error in judgment, or any fault for this decision. Reviewing the x-rays [of the left TKA], there is little that I see that is problematic in the placement of the [prosthetic] implant. A. The tibial component appears to be in acceptable alignment. B. The tibial slope appears to be appropriate for a posterior-stabilized component. C. The femoral component appears to be appropriately sized. The medial and lateral coverage looks appropriate. The anterior and posterior sizing also appears appropriate. D. The joint line does not appear to be raised. The patellar height appears to be pretty normal[.] On the lateral x-ray the femoral component does not show evidence of anterior or posterior overhang[.] E. The sunrise x-rays. . . show lateral tilt of the patella on the left knee, but this does not appear much different than the right knee which is functioning well. There is no subluxation of the patella. It appears to be tracking in center of the trochlea despite the lateral tilt. I do not feel that there was carelessness, negligence, lack of proper skill, error in judgment, or any fault with regards to the position of the left total knee arthroplasty. There appears to be [a] question that the [Veteran's left] knee is now unstable. [B]ased on my review of the [record], I think that the [left] knee became unstable due to stretching of the collaterals and not from an event in the [operating room during the March 6, 2003 TKA] or from bad decision making initially. It appears that her patella may also be symptomatic at this point. Regardless, these are relatively uncommon but accepted complications of a total knee arthroplasty. Due to the well-described nature of the complication, I would say that the March 6, 2003] surgery did not cause the [current left knee] disability, and that the VA provided [an] acceptable level of care. It appears that the initial [left TKA of March 6, 2003] was reasonably well performed without obvious technical error. The resulting instability likely occurred due to stretching of [the Veteran's] tissues that resulted in instability. This does occur occasionally and is a small risk to anyone undergoing [a] total knee replacement. In reviewing the medical opinion issued in March of 2011, I generally agree with the findings[.] In its July 2012 order the Court, by incorporating the terms of a joint motion for remand, found a remand was required for the Board to discuss whether instability was addressed in the pre-operative discussion or if not whether it should have been explicitly listed as a reasonably foreseeable associated risk of the procedure. It was noted that a review of the documentation of informed consent associated with the TKA reflected that, while several risks were noted, instability was not explicitly listed among the risks recorded on the form. Based upon a comprehensive review of the evidence of record, the Board acknowledges that the informed consent documents do not explicitly list instability among the risks recorded. The documents did, however, explicitly list infection, soft tissue damage, death, further surgery, and loose worn hardware as risks. Although private medical records dated in October 1987 noted the Veteran reported she had attended, but not completed, medical and pharmacology school, the Board finds there is no indication in the available record that she has an acquired expertise in the medical matters associated with her appeal. While the medical opinions of record do not specifically address whether instability was addressed in the pre-operative discussion or if not whether it should have been explicitly listed as a reasonably foreseeable associated risk of the procedure, the September 2011 VHA medical expert stated that TKAs occasionally get infected, the parts become loose, and they develop instability. He was of the opinion that the Veteran's instability likely occurred due to stretching of her tissues which was noted to occur occasionally and was a small risk to anyone undergoing a TKA. The Board finds this opinion is persuasive that instability subsequent to a TKA is shown to be only a small risk and not a reasonably foreseeable associated risk for which identification and explanation was required for an informed consent for VA purposes by the practitioner prior to the TKA performed on March 6, 2003. The Board also finds that any failure to explicitly advise the Veteran of the small risk of instability from a TKA is considered to be a minor, immaterial deviation because a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the risk. In fact, the Veteran is shown to have been explicitly informed of the risks of infection, soft tissue damage, death, further surgery, and loose worn hardware. While it is unclear if the Veteran's stretching of tissues is contemplated by the disclosed risks of soft tissue damage or further surgery, the Board finds a reasonable person in similar circumstances, to include acknowledging the possibility of further surgery and death, would have proceeded with the TKA even if informed of the explicit risk of instability. The Veteran's signed informed consent form is of record and the evidence demonstrates that she understood the nature of the proposed procedures, attendant risks involved, and expected results. The Veteran has not asserted and the record does not indicate that she lacked decision-making capacity at the time she signed this form. Therefore, the Board finds that there was substantial compliance with the requirements of informed consent under 38 C.F.R. § 17.32. After reviewing the totality of the relevant clinical evidence, the Board is compelled to conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for left knee instability, status post TKA performed at the Indianapolis, Indiana VAMC on March 6, 2003. Her appeal is thus denied. The Board finds that the weight of the medical evidence of record conclusively demonstrates that none of the Veteran's current orthopedic disorders affecting her left knee were caused by, or were the unforeseeable consequences of the March 2003 left TKA. The relevant VHA medical expert opinions obtained have indicated that the Veteran's left knee instability was an uncommon but acceptably foreseeable complication and risk of the TKA procedure performed. The generally unanimous medical opinions of the March 2011 VA physician and the February 2010 and September 2011 VHA medical experts do not otherwise indicate that there was any carelessness, negligence, lack of proper skill, error in judgment, or any fault on part of the medical care providers involved with the March 6, 2003 left TKA. Their probative weight as medical evidence far outweighs the statements of Dr. E.S.L., whose comments, at best, are by comparison only vaguely supportive of the Veteran's § 1151 claim. The Board notes that in a September 2006 statement Dr. E.S.L. opined that the Veteran's pain and marked medial and lateral instability of her left knee were "probably (due) to the fact that her patellofemoral joint was not replaced [i.e., resurfaced] and that her prosthesis was placed with poor stability of the knee." There is no indication as to which, if any, of the Veteran's medical records were reviewed nor was any other rationale for this opinion provided. The Board finds the use of the term "probably" in this case is equivocal and is unsupported by any medical rationale. As such, the September 2006 statement is considered to warrant a lesser degree of probative weight. The Court has held that a medical opinion is considered to be speculative when it uses equivocal language such as "could" or "might," without any other rationale or supporting data. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (statement that tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Goss v. Brown, 9 Vet. App. 109, 114 (1996) (phrase "could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (opinions are speculative and of little or no probative value when physician makes equivocal findings such as "death may or may not have been averted"). The Board also notes that "the Court has expressly declined to adopt a 'treating physician rule' which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician." Winsett v. West, 11 Vet. App. 420, 424-25 (1998) (citing Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Williams v. Brown, 4 Vet. App. 270, 273 (1993) ("Nowhere is it provided in law or regulation that opinions by the examining psychiatrists are inherently more persuasive than that of other competent mental health professionals."). The Court has held, however, that "[a] private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, "the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file." Id. The level of training, education, and experience of the person conducting the examination is a factor that, if the Board affords more or less weight to the report because of that reason, must be thoroughly explained in its decision. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)). The Board notes that lay evidence is competent to establish observable symptomatology. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson 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), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board finds that the issues as to medical errors and/or errors in judgment involved in this case are complex matters requiring a degree of medical expertise and knowledge of the degree of care that would be expected of a reasonable health care provider. The Veteran is not shown to have acquired such expertise or knowledge and her statements as to these complex medical matters are not considered to be competent evidence. To the extent her statements indicate reports of instability that had persisted since the March 6, 2003, TKA, the Board finds that such claims are not credible as they are inconsistent with medical records which first indicated evidence of subluxation in October 2003. The Board notes that while the medical evidence indicates that different theories have been presented as to the specific reason or reasons why the Veteran developed left knee instability it was conceded that she had developed instability. The pertinent questions at issue include whether the Veteran consented to the TKA as required by VA law and whether her left knee instability, status post TKA, was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA or was caused by an event that was not reasonably foreseeable. The Board finds that there was substantial compliance with the requirements of informed consent under 38 C.F.R. § 17.32. In light of the persuasive opinions of the March 2011 VA physician and the February 2010 and September 2011 VHA medical experts and a comprehensive review of the entire record, the Board finds that the Veteran's left knee instability, status post TKA, was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of VA associated with the left TKA performed at the VAMC on March 6, 2003, and was not caused by an event that was not reasonably foreseeable. Therefore, the appeal must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to 38 U.S.C.A. § 1151 VA compensation for left knee instability, status post TKA performed at the Indianapolis, Indiana, VAMC on March 6, 2003, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs