Citation Nr: 1313384	
Decision Date: 04/22/13    Archive Date: 05/03/13

DOCKET NO.  04-06 416	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for additional left lower extremity disability and the related residuals of falls claimed as the result of left knee surgery performed at the VA medical facility in Alexandria, Louisiana, in March 1998.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel


INTRODUCTION

The Veteran served on active duty from December 1950 to October 1952. The Veteran died in 2009. The appellant is the Veteran's surviving spouse.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2003 by the Department of Veterans Affairs (VA) "Tiger Team," located at the VA Regional Office (RO) in Cleveland, Ohio. Due to the Veteran and the appellant's place of residence, the RO in New Orleans, Louisiana, assumed jurisdiction. 

Prior to his death, in his February 2004 Substantive Appeal to the Board, the Veteran indicated that he did not want any hearing before the Board; however, in an August 2006 written statement, the Veteran indicated that he wanted a personal hearing in New Orleans. In May 2007, the Board remanded the issue currently on appeal to the New Orleans RO for further development, to include inquiring of the Veteran if he wished to attend a hearing before a Board member. 

Subsequent to the Board's May 2007 Remand, the Veteran died and the appellant, in correspondence of July 2009, requested that she be substituted into the Veteran's claim pursuant to the provisions of the Veteran's Benefits Improvement Act of 2008, Pub. L. No. 110-389, Section 212, 122 Stat. 4145, 4151 (2008) (codified at 38 U.S.C.A. § 5121A (2012)). VA accepted her request for substitution.  

In December 2009, the appellant contacted VA to file an additional claim for entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death, as she contended that negligent cancer treatment that the Veteran received at a VA facility caused the Veteran's death; however, in February 2010, the appellant informed VA that she did not wish to pursue a claim for entitlement to compensation under 38 U.S.C. § 1151 for the cause of the Veteran's death at that time. Therefore, the Board will not refer that issue to the RO for development. 

In a May 2010 rating decision, the RO in Denver, Colorado, denied the appellant's claims for service connection for the cause of the Veteran's death and entitlement to accrued benefits. As the appellant did not appeal the May 2010 rating decision in a timely fashion, the May 2010 rating decision became final; therefore, the issues of service connection for the cause of the Veteran's death and entitlement to accrued benefits are not in appellate status and are not before the Board. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012).  

The appellant requested that she be allowed to testify at the New Orleans RO at a hearing before a Veterans Law Judge, seated in Washington, DC, via videoconferencing. Prior to the scheduled date for the hearing, in January 2013, the appellant withdrew her request for a hearing in writing.


FINDING OF FACT

The evidence of record does not show that the Veteran experienced an additional disability caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA when it performed the March 1998 left knee replacement at the VA medical facility in Alexandria, Louisiana; or that there was lack of informed consent; or that additional disability was caused by an event not reasonably foreseeable resulting from that procedure.


CONCLUSION OF LAW

The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for additional left lower extremity disability and the related residuals of falls claimed as the result of left knee surgery performed at the VA medical facility in Alexandria, Louisiana, in March 1998 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 FINDING AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."), and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d) (West 2002 & Supp. 2012); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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 & Supp. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify a claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must be provided to the claimant prior to the initial adjudication of his or her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

With regard to the claim on appeal, VA has satisfied its duty to notify the appellant by issuing a proper VCAA notice letter in April 2012. In this letter, VA informed the appellant about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; and the information and evidence the appellant was expected to provide. Although this letter was not issued prior to the March 2003 rating decision from which this appeal arises, the RO readjudicated the claim in a July 2012 Supplemental Statement of the Case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a SOC or Supplemental Statement of the Case (SSOC), is sufficient to cure a timing defect). 

The duty to assist provisions of the VCAA have been met. The claims file contains reports of medical treatment, a February 2003 VA medical examination report, and a VA medical opinion regarding the etiology of the Veteran's claimed additional disability, specifically left foot drop, procured in July 2012.  

This case was remanded in May 2007 so that VA could procure any outstanding VA and private treatment records, and to procure a VA medical opinion regarding the etiology of the Veteran's claimed additional disability. As the RO procured the records requested by the Board and obtained the requested medical opinion, the Board finds that there was substantial compliance with its May 2007 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

The appellant has not made VA aware of any additional evidence that must be obtained in order to fairly decide the appeal. She has been given ample opportunity to present evidence and argument in support of the claim. Pursuant to 38 C.F.R. 
§ 3.655 (2012), all relevant evidence necessary for an equitable disposition of the appellant's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 
38 C.F.R. § 3.103 (2012). 	

The Merits of the Claim 

A veteran may be awarded VA compensation for disability caused by VA medical care in the same manner as if that disability was service-connected. 38 U.S.C.A. 
§ 1151. A disability is considered a qualifying disability if it was not the result of the veteran's willful misconduct and if it was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. Id.; see also VAOPGCPREC 40-97.

38 C.F.R. § 3.361(b) states that, to determine whether a veteran has such a disability due to VA medical care, VA compares a veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the condition after such care or treatment. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately.

38 C.F.R. § 3.361(c) states that claims of disability due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of that paragraph and paragraph (d)(1) or (d)(2) of that 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 disability. Merely showing that a veteran received care, treatment, or examination and has an additional disability does not establish causation. Continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished is not considered additional disability unless VA's failure to timely diagnose and/or properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability 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 is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault proximately caused a veteran's additional disability, VA care must be shown to have caused the additional disability (as explained in paragraph (c) of this section) and there must be evidence that (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.

Generally, all patient care furnished by VA 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. 38 C.F.R. 
§ 17.32(b). The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d).

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 § 17.32. 

In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

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. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused veteran's death).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

The appellant essentially contends that the Veteran incurred an additional disability, specifically left foot drop, after undergoing left knee replacement surgery at the VA medical facility in Alexandria, Louisiana, in March 1998. During the pendency of this appeal, both the Veteran and the appellant contended that the Veteran's left foot drop resulted in other injuries and disorders. Specifically, both the Veteran and the appellant contended that his left foot drop resulted in falling accidents causing a left hip fracture, a compression fracture of the lumbar spine, a right shoulder disorder, a right collar bone disorder, a spleen condition resulting from a puncture in the spleen due to the back injury, and residuals of a heart attack caused by a loss of blood due to the puncture of the spleen. 

After a review of all evidence, the Board finds that entitlement to compensation pursuant to 38 U.S.C. § 1151 is not warranted.  The preponderance of the evidence is against the claim and the appeal will be denied. 

In a February 1998 VA administrative record, specifically a Request for Administration of Anesthesia and for Performance of Operations and Other Procedures (Informed Consent Form), a VA examiner noted that the Veteran was to undergo a left total knee arthroplasty with blood transfusions as needed. The VA examiner wrote that the operation involved the replacement of arthritic bone and tissue with metal and plastic implements. The VA examiner reported counseling the Veteran as to the attendant risks involved in the procedure, to specifically include an injury to the nerves and blood vessels. The Veteran signed the Informed Consent Form, specifically noting that he understood the nature of the proposed procedure and the attendant risks involved, and that he requested that that the procedure be performed.

In a March 1998 VA treatment record, a VA surgeon noted performing a total cruciate-retaining knee arthroplasty with a Howmedica Duracon knee. The VA surgeon noted that the Veteran had desired surgical intervention for progressive left knee pain, related to degenerative joint disease of the left knee. The VA surgeon also noted that the indications and risks of a surgical procedure were discussed in detail with the Veteran. The VA surgeon indicated that all of the Veteran's questions regarding the procedure were answered and an Informed Consent Form was signed and placed in the medical record. In this treatment record, the VA surgeon indicates in detail the performance of the operation from the Veteran's entrance into the operating room to the end of the procedure. The VA surgeon made no notation indicating any injury to a nerve during the performance of the operation.

Subsequent VA treatment records indicate recurring treatment for left foot drop. In an April 1998 VA treatment record, an employee at the orthopedics department at a VA medical facility reported ordering an ankle brace for the Veteran in April 1998. Of note, in a March 1998 VA treatment record, the Veteran reported that the left knee drop was an old injury that predated the knee replacement surgery. 

In a February 2003 VA medical examination report, the Veteran reported developing left foot drop due following the March 1998 left knee arthroplasty. In reviewing the claims file, the February 2003 VA examiner specifically noted the March 1998 VA treatment record in which the Veteran reported that his left knee drop disorder predated his March 1998 knee replacement surgery. The VA examiner also noted that the Veteran was taking several medications that could interfere with his ability to walk as they had a sedative effect. Specifically, the VA examiner noted that the Veteran had been taking three different medications for Meniere's disease for decades, as well as medications for blood pressure, chronic low back pain, and osteoarthritic pain. The VA examiner also noted that the Veteran had diabetes uncontrolled by medication; a history of dizzy spells related to Meniere's disease, dating back to 1973; a history of unsteadiness dating back to 1993; and a history of numbness and weakness of the left leg predating the March 1998 surgical procedure by many years. After a physical examination, the VA examiner diagnosed osteoarthritis and degenerative arthritis of the spine.  

Having interviewed the Veteran, performed a physical examination, and reviewed the claims file, the February 2003 VA examiner opined that the Veteran's weakness of the left foot existed for many years prior to his left total knee arthroplasty. The VA examiner opined that the cause of the Veteran's falls was likely related to his age at the time of the incident, his history of Meniere's disease, his history of chronic anemia, and his prolonged usage of sedating medications, narcotics, and hypertensive medication.

In several lay statements filed during the pendency of the appeal, both the Veteran and the appellant stated that the Veteran's left foot drop disorder did not predate the March 1998 left knee arthroplasty procedure. In addition, the Veteran and the appellant submitted lay statements from friends and family. In a signed statement, a contractor who employed the Veteran wrote that the Veteran did not experience foot drop during the time he worked for him, lasting until the Veteran entered the VA Medical Center in New Orleans in July 1973. The contractor did not report when or if he witnessed the Veteran experience left foot drop symptomatology after July 1973. In another such statement, the son of a former employer wrote that the Veteran did not experience foot drop during the eight-year period he worked for the author's father, ending in the summer of 1972. In a statement submitted by the Veteran's nephew, the author wrote that the Veteran did not experience left foot drop until after the March 1998 left knee arthroplasty. 

In a September 2003 statement, the appellant wrote that the Veteran's statements indicating that his left foot drop preexisted service, included in the March 1998 VA treatment record, should not be given "much credit." The appellant indicated that, at the time the March 1998 VA examiner asked him about his foot drop, the Veteran was under the influence of pain medications and, due to hearing loss symptomatology, could not hear very well. The appellant indicated that the Veteran would sometimes answer a question incorrectly because he did not understand the question that he was asked. The appellant also stated that the February 2003 VA examiner was found to be incompetent, but did not state who found him to be incompetent or otherwise relate a basis for this accusation. 

The appellant indicated that the Veteran, while being interviewed by the February 2003 VA examiner, provided incorrect answers to the examiner's questions. The appellant wrote that the February 2003 VA examiner would not allow the appellant to correct the Veteran's incorrect answers. Moreover, the appellant alleged that the February 2003 VA examiner made the Veteran perform exercises during the examination that were dangerous for him to perform due to his heart problems. 

Regarding the March 1998 left knee arthroplasty, in the September 2003 statement, the appellant stated that the surgeon who performed the surgery told her that the Veteran's foot drop was caused by nerve damage related to the surgery. The appellant also stated that the March 1998 VA surgeon could not get the Veteran's knee to stay flat on the X-ray table on the day of the surgery because the Veteran walked bow-legged. The appellant stated that, due to this difficulty, the Veteran's surgery lasted until 4 p.m., a half-hour before the physical therapist went home for the day. The appellant also indicated the VA personnel could not provide the Veteran with the exercise machine needed for his left foot on the night after the surgery because his bed was too small for himself and the machine. The appellant stated that the Veteran suffered that night with his foot stretched on the bed and that he begged for pain medication until the early morning. The appellant stated that it was strange that the doctors at the VA medical center where the surgery occurred had all left within a three-month to six-month period. The appellant reported that the Veteran's primary care doctor told them for years that the Veteran was "fine until he had that knee surgery." The appellant wrote that the primary care doctor's statement "doesn't mean anything if it's not in the records, but records somehow have a way of disappearing." 

In a July 2012 VA medical opinion, a VA clinician noted reviewing the claims file in its entirety prior to writing their opinion. The VA clinician noted that the Veteran's drop foot occurred as a result of the March 1998 total knee arthroscopy; however, the VA clinician wrote that the occurrence of the foot drop did not automatically represent a lack of care on the part of the surgeon who performed the March 1998 surgery. The VA clinician noted that a peroneal nerve injury had an incidence of 0.4 to one percent even in the "best of hands" during knee surgery and was usually an unforeseeable event arising from such procedures. The VA clinician stated that the Veteran's left foot drop appeared to be an unforeseeable event arising from the knee surgery as there was nothing in the VA treatment records suggesting that the March 1998 VA surgeon used poor technique in performing the operation. The VA clinician also opined that drop foot with a brace would not be a life-changing situation as it would only result in a slowness of gait and shortness of step. The VA clinician also opined that the Veteran's spleen disorder was less likely than not due to drop foot. 

Significantly, the VA clinician wrote that the spleen disorder was more likely due to the Veteran's Meniere's disease as that condition caused the Veteran's entire equilibrium to be off even in a sitting position whereas a drop foot in a brace would cause only a slower gain and not falls unless the Veteran was attempting to run. The VA clinician indicated that attempting to run would be very unlikely in the Veteran's age group. 

The appellant's statements indicating that the Veteran first experienced left foot drop after the March 1998 left knee surgical procedure are competent and credible. Although the medical evidence of record indicates that the Veteran experienced some neurological numbness in the legs prior to the March 1995 left knee surgery, the treatment records contain no notation indicating treatment or diagnosis for left foot drop until immediately after the surgery in this matter. As the appellant's statements regarding the onset of the Veteran's foot drop are consistent with the other evidence of record, the Board finds them to be both competent and credible. See Caluza, 7 Vet. App. at 511-12; Madden, 125 F.3d at 1481.

However, the Veteran's statements included in the March 1998 VA treatment record, indicating that his left foot drop predated his March 1998 left knee surgery, are not credible. As noted above, despite the Veteran's statements to the contrary, the treatment records contain no notation indicating treatment or diagnosis for left foot drop until immediately after the aforementioned surgical procedure. As the Veteran's statements are inconsistent with the other evidence of record, the Board finds that they lack credibility. See id. at 498 (holding that, in weighing credibility of lay evidence, even that recorded in a medical record, VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). 

In her September 2003 lay statement, the appellant indicated that the Veteran was prone to answering questions incorrectly due to his loss of hearing. As will be explained below, the Board finds that the Veteran was competent to make medical decisions and communicate said decisions with medical personnel. In an otherwise unrelated September 2001 rating decision, the New Orleans RO found that the Veteran was incompetent to handle his own funds, in part, due to the Veteran's admitted memory problems. As the Veteran's statements are inconsistent with the other evidence of record and the Veteran was known to have memory problems, the Board finds that that the Veteran's statements included in the March 1998 VA treatment record, indicating that his left foot drop predated his March 1998 left knee surgery, are not credible.

While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court has found that a medical opinion is inadequate when it is unsupported by clinical evidence. In the February 2003 VA medical examination report, the February 2003 VA examiner opined that the Veteran's left foot drop was less likely than not related to the March 1998 surgical procedure based in part, on the Veteran's statements included in the March 1998 VA treatment record, indicating that his left foot drop predated his March 1998 left knee surgery. As the Board has found the Veteran's March 1998 statements lack credibility, the Board finds that the February 2003 VA examiner's opinion, indicating that the Veteran's left foot drop predated his March 1998 left knee surgery, are of weakened probative value in this matter. Black v. Brown, 5 Vet. App. 177, 180 (1995) (finding that a medical opinion is inadequate when it is unsupported by clinical evidence).

At the time of his surgery, the Veteran appeared both competent and able to make decisions. In the July 2012 VA medical opinion, a VA clinician noted reviewing the claims file in its entirety prior to writing their opinion and noted that the clinical evidence indicated that the Veteran's foot drop disorder clearly preexisted service. The VA clinician wrote an opinion based on the evidence of record and his experience as a medical professional. Considering the thoroughness of the VA clinician's findings, to include references to the record of evidence, the Board finds the July 2012 VA clinician's opinion to have great probative value in this matter. See Prejean v. West, 13 Vet. App. 444, 448 (2000) (indicating that the Board may determine the probative value of medical opinions based on their detail, the persuasiveness of their opinions, and the physician's access to a veteran's medical records).

The Board again notes that the July 2012 VA clinician found that the Veteran's left drop foot occurred as a result of the March 1998 total knee arthroscopy. As the Board finds this opinion to be competent and credible, and considering the evidence of record, lay and medical, indicating that the left drop foot appeared almost immediately after the March 1998 surgery, the Board finds that the Veteran incurred an additional disability, specifically foot drop, due to the March 1998 left knee surgery. 

The Veteran's foot drop disability was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA personnel in performing the March 1998 left knee arthroscopy. The Board notes that VA furnished the surgical treatment with the Veteran's informed consent as to the risk of a nerve injury resulting from the surgery. 38 C.F.R. § 17.32(d). The record contains an Informed Consent Form, signed by the Veteran and a witness, in which the Veteran indicated that he wished to have the surgery. As noted above, in a September 2001 rating decision, the New Orleans RO found that the Veteran was incompetent to handle his own funds, in part, due to the Veteran's memory problems. Despite this, the Board finds that the Veteran did not lack the competence to understand and make his own medical decisions, and to communicate his decisions to medical personnel at the time of the signing of the February 1998 Informed Consent Form.38 C.F.R. § 17.32(b). 

The record contains no indication that the Veteran did not wish to undergo the March 1998 left knee surgery or that the Veteran did not understand the potential risks at the time he volunteered consent. The record contains no treatment records or other contemporaneous evidence suggesting that the Veteran was not lucid, or otherwise incapable of understanding his medical decisions or of granting consent for any operations at the time of the signing of the February 1998 Informed Consent Form. Moreover, the form was signed by a witness who, by signing, attested to the fact that VA personnel informed the Veteran of the risks of surgery and that the Veteran freely consented to said risks. Therefore, the Board finds that VA furnished the March 1998 left knee surgical treatment with the Veteran's informed consent as to the risk of a nerve injury resulting from the surgery.

The Board also finds that the March 1998 VA surgeon and the VA personnel who assisted him in the performance of the March 1998 surgical procedure exercised the degree of care that would be expected of reasonable health care providers The March 1998 VA treatment record contains no notation suggesting that the March 1998 VA surgeon and his assistants during the operation failed to exercise the degree of care that would be expected of reasonable health care providers. The Board notes that, in the March 1998 VA treatment record, the VA examiner noted every aspect of the Veteran's surgery from the beginning to the end. The VA treatment records contain no notation indicating that the March 1998 VA examiner or any of those assisting him committed a negligent act during the commission of the operation. In the September 2003 lay statement, the appellant wrote that the March 1998 VA surgeon told her that the Veteran somehow experienced a nerve injury during the surgery. 

In the July 2012 VA medical opinion, the VA clinician corroborated that account, finding that the Veteran's foot drop was related to an injury to the peroneal nerve that occurred during the surgery. Yet, the VA clinician noted that the chance of such an injury was present in all knee surgeries, occurring from 0.4 to one percent of all such operations. The VA clinician noted that the occurrence of such injuries did not vary based on the quality of the surgeon performing the operation and that there was nothing in the records suggesting that the March 1998 VA surgeon's techniques was flawed. 

Throughout the pendency of the appeal, the Veteran and the appellant have essentially contended that compensation should be provided for the Veteran's foot drop because it was caused by a mishap during surgery. In describing the mishap, however, neither the Veteran nor the appellant have presented any argument except to say that the Veteran experienced foot drop after the surgery. The Board notes that the existence of an additional disability resulting from VA care, by itself, is not sufficient to allow for compensation under 38 U.S.C.A. § 1151 as there must also be evidence indicating that the additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or a showing that the additional disability was caused by an event not reasonably foreseeable. 38 U.S.C.A. § 1151. The Board notes that the treatment records contain no notation indicating that the March 1998 VA surgeon and his assistants were careless, negligent, unskilled, or committed an error in judgment in performing the March 1998 surgery. In the July 2012 VA medical opinion, the VA clinician indicated that an injuries to the peroneal nerve occurred in up to one out of every 100 knee surgeries, regardless of the quality of the surgical practitioner. Therefore, the Board finds that the evidence does not indicate that the March 1998 VA surgeon and his assistants failed to exercise the degree of care that would be expected of reasonable health care providers.

As such, the evidence indicates that the Veteran's left foot drop disability was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA personnel in performing the March 1998 left knee arthroscopy.

The Board also finds that the Veteran's left foot drop was not caused by an event not reasonably foreseeable during the performance of the March 1998 surgery. 
38 U.S.C.A. § 1151. In the July 2012 VA medical opinion, the July 2012 VA clinician stated that the Veteran's left foot drop appeared to be an unforeseeable event arising from the knee surgery as there was nothing in the VA treatment records suggesting that the March 1998 VA surgeon used poor technique in performing the operation. The Board notes that the usage of the word "unforeseeable" by the July 2012 VA clinician does not indicate that the Veteran's foot drop was a reasonably unforeseeable event under the provisions of 38 U.S.C.A. § 1151. In making the determination as to whether an event was reasonably unforeseeable in this instance, the Board is to consider whether the proximate cause of the Veteran's additional disability was an event not reasonably foreseeable based on what a reasonable health care provider would have foreseen. In this instance, the July 2012 VA clinician noted that the peroneal nerve injury that resulted in the Veteran's right foot drop was known to occur in almost one out of every 100 knee surgeries. Moreover, the February 2012 Informed Consent Form indicates that VA personnel specifically informed the Veteran of the possibility of a nerve injury prior to the operation. Therefore, as the chance of the Veteran's injury was a known risk of the surgical procedure and VA personnel informed the Veteran of this risk prior to the procedure, the evidence indicates that the Veteran's foot drop was not caused by an event not reasonably foreseeable during the performance of the March 1998 surgery. See id. 

Therefore, the preponderance of evidence is against a granting of disability compensation pursuant to 38 U.S.C.A. § 1151 for the additional left lower extremity, specifically foot drop, related to the March 1998 left knee surgery. As noted above, both the Veteran and the appellant also claimed entitlement under 38 U.S.C.A. § 1151 for other disorders, specifically left hip fracture, a compression fracture of the lumbar spine, a right shoulder disorder, a right collar bone disorder, a spleen condition, and residuals of a heart attack; however, both the Veteran and the appellant claimed that these disorders resulted, directly or indirectly, from falling accidents caused by the Veteran's left foot drop. As the preponderance of the evidence weighs against a granting of disability compensation under 38 U.S.C.A. § 1151 for the Veteran's left foot drop, the preponderance of the evidence, naturally, weighs against a granting of similar compensation for disabilities claimed as resulting from the left foot drop. 

The Board has noted the statements of both the Veteran and the appellant, indicating that the Veteran incurred a left foot drop due to the March 1998 left knee surgery. The Board has also noted the appellant's statements, suggesting that VA personnel did not treat the Veteran in a manner that she would wish to be treated. Yet, the Board must consider this claim entirely according to VA regulations. As the evidence indicates that the Veteran's left foot drop and the claimed resulting disabilities were not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing surgical care; or an event not reasonably foreseeable due to that surgery, the claim must be denied.  

For these reasons, a grant of disability compensation pursuant to 38 U.S.C.A. 
§ 1151 is not in order.


ORDER

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for additional left lower extremity disability and the related residuals of falls claimed as the result of left knee surgery performed in a VA hospital in March 1998 is denied.  



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs