Citation Nr: 1317698 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-33 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for a disability resulting from left knee surgery in September 1987. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). The Veteran served on active duty with the United States Air Force from June 1951 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas, which denied both service connection and compensation under 38 U.S.C.A. § 1151 for the left knee. In a November 2011 Board remand, the Board noted that both issues had been appealed, but additional development and consideration was required to fully consider the differing legal standards applicable to each. When the matters were returned to the Board in September 2012, the Board denied service connection and again remanded the 38 U.S.C.A. § 1151 claim. The required development has been completed, and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran requested hearings before a local hearing officer and a Veterans Law Judge. The local hearing was accomplished in September 2009, and a transcript is associated with the claims file; the Veteran withdrew his request for a Board hearing. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. FINDING OF FACT There is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing a medical procedure to the left knee in September 1987, nor is any current disability due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional left knee disability as the result of VA treatment 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 Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in a November 2007 letter. The November 2007 notice was issued prior to the appealed February 2008 rating decision. In the November 2007 letter, the Veteran was also notified of VA's practices in assigning disability evaluations and effective dates for service-connected disabilities pursuant to Dingess/Hartman. There are accordingly no deficiencies of notification in this case, nor has the Veteran argued otherwise. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4) (2012). In this case, VA and private medical records concerning the claimed left knee disability under § 1151 have been obtained to the extent possible, and there is no indication of additional relevant treatment records concerning this disability. As such, the RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. The Veteran was also afforded fully comprehensive VA records review, with subsequent medical opinion in March 2013, to determine whether he had an additional left knee disability due to VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or as due to an event not reasonably foreseeable. This was in response to the Board's September 2012 remand requesting clarification of the January 2012 opinion. The March 2013 VA examination report, and April 2013 addendum, reflects that the VA examiner reviewed the Veteran's past medical history and provided opinions consistent with the remainder of the evidence of record, and provided sufficient information to decide the Veteran's claim. As noted in the Board's September 2012 remand, the January 2012 VA opinion deviates from the Board's November 2011 request. The Board notes that the January 2012 medical opinion was not obtained from an orthopedic surgeon. Rather, a physician's assistant (PA) provided the requested opinion. According to the medical facility, a VA orthopedic surgeon was not available at the facility, and the PA who rendered the opinion had experience in the field of orthopedic medicine and had worked with numerous orthopedic physicians in the past. Thus, the Board concludes that while the agency of original jurisdiction did not absolutely or strictly comply with the November 2011 remand, its compliance was sufficient for the purposes of the pending claim. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2009) ("substantial compliance" rather than "strict compliance" is required under Stegall). The Board, therefore, concludes that the March 2013 report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria The Veteran contends that his 1987 left knee surgery at the VA Medical Center in Midland, Texas, was improperly performed. He specifically claims that removal of a "golf ball sized" foreign body from the front of his left knee was not the appropriate way to remove the foreign body and his left knee hurt for two years after his surgery. He contends that his left knee problems have gotten progressively worse since that time, and maintains he did not give consent to the effects of his left knee surgery. In pertinent part, section 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service- connected. A qualifying additional disability is one in which the disability was not the result of the Veteran's willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of 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 was the result of an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). 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, medical or surgical treatment, or examination without the Veteran's informed consent. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b) (2012). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). 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. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32 (2012). 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. The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability 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. 38 C.F.R. § 3.361(d)(2). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background and Analysis Again, the Veteran contends that a September 1987 left knee medial arthrotomy with removal of a loose body was improperly performed at the VAMC and resulted in additional disability. Just prior to the surgery, the Veteran complained of left knee problems for the previous 6 months. He was diagnosed as having a loose body in the left knee. At the time, he described increased soreness causing him to be unable to work as a commercial mower on a fulltime basis. He denied any left knee pain at rest, but notices it when he is active. The pain described was noted to be mainly in the anteromedial area in the left knee. He endorsed occasional locking and catching in the left knee, but denied any grinding or swelling. The Veteran decided to proceed with an elective removal of the a large osteochondral loose body fragment in the anterior left knee or knee washout. Pre-surgical x-ray revealed a 1 centimeter by 2 centimeter loose body in the anterior portion of the left knee. There were some early degenerative changes seen on the patellofemoral articulation. Prior to the surgery, the Veteran signed a Request for Administration of Anesthesia and for Performance of Operations and Other Procedures-in other words, a consent form. The surgery to be performed was listed as a arthrotomy of the left knee. This form noted that the Veteran was told of "the nature and purpose of the operation or procedure, possible alternative methods of treatment, the risks involved, and the possibility of complications." The Veteran acknowledged that no guarantees had been made to him concerning the operation. He also agreed to any additional operations or procedures that are found to be desirable or necessary based on the judgment of the professional staff. After counseling by a physician, the Veteran signed on the line under the statement, "I understand the nature of the proposed procedure(s), attendant risks involved, and expected results, as described above, and hereby request such procedure(s) be performed." The back of the consent form listed, recurrence of foreign bodies, infection, stiffness, nerve/blood vessel tendon damage, or the need for further surgery as relevant risks of the procedure. Noted was that the Veteran had the opportunity to ask questions and indicate comprehension of the discussion, and he freely consented to the procedure/treatment without duress or coercion. In September 1987, the Veteran underwent the left knee arthrotomy. According to the post-surgery notes, there was an anterior midline incision for removal of a 2 centimeter by 3 centimeter osteochondral fragment embedded in the fat pad, anteriorly, with some synovitis, anteriorly. The surgeon also removed a small osteophyte from the distal pole of the patella. He indicated that the Veteran tolerated the procedure well and there were no intraoperative complications. The surgical notes identified the Veteran's osteochondral fragment as being 1centimeter by 1.75 centimeters. In 1989, the Veteran again sought treatment for left knee complaints, and reported that he had problems in his left knee since his 1987 surgery. He was reporting pain and difficulty climbing stairs. At that time, he was diagnosed as having moderate to severe left chondromalacia patella. In September 1999, the Veteran underwent a private diagnostic arthroscopy and arthroscopic debridement of the left knee with partial lateral meniscectomy and removal of loose bodies. Prior to the surgery, he had reported left knee pain, popping, swelling, and locking. X-rays at that time revealed possible loose bodies and degenerative changes in the left knee. There were no complications from this surgery. The Veteran was treated for subsequent left knee pain and diagnosed as having osteoarthritis with synovitis of the left knee. In 2004, he injured his left knee when tripping over a box at work. During the Veteran's DRO hearing in September 2009, he testified to experiencing significant left knee pain. He described what he thought was popping and pulling of ligaments and giving way. He reported a history of falls when he watches his balance due to his left knee problems. He again asserted that he believed the surgical removal of the golf-sized calcium deposit or cyst should have come from the back of the knee and not the front. The Veteran was afforded VA orthopedic examinations in October 2009 and July 2010. The October 2009 examiner did not provide an opinion as she felt that someone with more expertise should provide an opinion as to whether the Veteran's left knee surgery was improper. The July 2010 examiner opined that there is no evidence of improper surgical procedure. In November 2011, the Board found the July 2010 opinion to be inadequate as to whether the Veteran has an additional disability due to VA surgical treatment in 1987, in which the proximate cause was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing a medical procedure; or due to an event not reasonably foreseeable. In January 2012, the Veteran's claims file was sent for a thorough records review an opinion as to the propriety of the 1987 left knee surgery. The examiner indicated that he reviewed the Veteran's claims file in conjunction with reaching his opinions. The examiner opined that after careful review of the claims file, he could not find any instance carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in performing a medical procedure. ; or due to an event not reasonably foreseeable. In reaching this conclusion, the examiner stated that that large loose bodies are typically removed by the use of an arthroscope. He further noted that those with loose bodies in the knees are predisposed to developing osteoarthritis of the affected joint. Additional foreseeable complications of the surgery were listed as, damage to the surface of the joint (posttraumatic arthritis) or synovial lining of the joint cavity. Long term inflammation of the synovium (synovitis) is also a known complication. The examiner also addressed the Veteran's contention that surgery should have been approached from the rear of the knee, indicating that the typical surgery is from the front, and large bodies are broken up, not removed from a different direction. As noted above, the Board found that the January 2012 examiner is considered a "similar expert" as requested in the Board's November 2011 remand. In September 2012, the Board remanded the claim for a clarification opinion from the January 2012 VA examiner. In March 2013, the January 2012 examiner provided an additional opinion related to the Veteran's claim. He stated that after careful and exhaustive review of the Veteran's medical records, he could not find any current left knee disability that was proximately caused by an event not reasonably foreseeable due to his 1987 left knee surgery. In reaching this conclusion, the examiner noted that most individuals who undergo the same surgical procedure as the Veteran have good early results. Again, they are predisposed to developing osteoarthritis in the affected joint. The anticipated/foreseeable problems following the Veteran's type of surgery includes severe pain, swelling, and potential damage to the surface of the joint or synovial linking. Long term inflammation of the synovium can occur. There is no clinical opinion to the contrary. As noted above, in order for a claim pursuant to 38 U.S.C.A. § 1151 to be granted, it must be definitively determined that an additional disability occurred as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. Pursuant to 38 C.F.R. § 3.361, this can be shown by establishing that VA treatment proximately caused additional disability, and 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 informed consent. In this case, the most probative evidence of record fails to establish that the Veteran incurred an additional left knee disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA, nor was it proximately caused by an event not reasonably foreseeable. In that regard, the Board finds the March 2013 and April 2013 VA examiner's opinions of significant probative value. The examiner reviewed the Veteran's claims file and contentions, but concluded that the Veteran did not have any additional left knee disability due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA or as a result of an event not reasonable foreseeable. The examiner essentially concluded that the Veteran's subsequent osteoarthritis with synovitis of the left knee is a known risk following an arthrotomy. He also indicated that people who have undergone a surgical procedure on the knee are predisposed to developing osteoarthritis in the affected joint, and severe pain, swelling, and potential damage to the surface of the joint or synovial lining of the joint are known complications. The examiner's conclusions are supported by the other VA medical professionals of record who have noted the Veteran's current left knee problems are not due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA or as a result not reasonably foreseeable. Additionally, private and VA treatment records dated since 1987 show continued pain and functional limitation in the left knee, and as discussed by the March 2013 VA examiner, these are known complications of an arthrotomy. By contrast, the Board has considered the Veteran's contentions that he was never informed of the effects of the 1987 surgery and that his surgery was improperly performed of significantly less probative value. Certainly, the Veteran can attest to factual matters of which he has first-hand knowledge, such as subjective complaints of increased left knee pain, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is not, however, necessarily competent to render an opinion as to the cause or etiology of such problems, nor is he competent to opine as to whether residuals of a surgical procedure were due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA or as a result not reasonably foreseeable because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). It is clear from the September 1987 consent form that the Veteran knew the risks/potentially effects of his arthrotomy. The document, clearly signed by the Veteran, acknowledged that he was advised of the risks/potential complications of this surgery. On the back of the document, the advising physician even handwrote additional potential risks. The Veteran agreed to assume such risks by signing this consent document. As such, the Board finds the Veteran's statement that he was not informed of the effects of the arthrotomy to lack credibility. Given the complex nature of the medical questions involved in this case, the Board ultimately places far more probative weight on the opinions of the competent VA health care specialists, who considered the Veteran's lay reports but determined that the Veteran did not have an additional left knee disability due to his September 1987 VA surgery. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board is sympathetic to the Veteran's contentions of his perceived increased left knee problems, as well as the documentation of continued left knee pain and problems following the surgery. The Board finds, however, that the preponderance of the probative evidence of record simply does not support that the Veteran incurred a permanent aggravation or other additional disability of the left knee following his September 1987 left knee surgery. In fact, the residual left knee problems were known complications of the arthrotomy and were not caused by any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. As such, the criteria for service connection under 38 U.S.C.A. § 1151 have not been met. Accordingly, as the preponderance of the evidence is against the claim for benefits pursuant to 38 U.S.C.A. § 1151, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for an additional disability as a result of a September 1987 VA left knee surgery is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs