Citation Nr: 1323582 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 07-29 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left leg/left hip disability, to include residuals of osteomyelitis of the left leg/left hip. REPRESENTATION Appellant represented by: Carolyn J. Kerr, Accredited Claims Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to October 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board issued a decision denying this appeal in April 2010. In January 2011, pursuant to a Joint Motion for Remand (JMR) between the appellant and the Secretary of Veterans Affairs, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. In January 2012, this case was remanded to the RO at the Veteran's request for the purpose of allowing the RO to readjudicate the claim with consideration of evidence newly added to the record. The Board obtained independent advisory medical opinions to address the issue on appeal in September 2011 and January 2013. See 38 U.S.C.A. § 7109(a); 38 C.F.R. § 20.901(d). The Veteran's representative submitted a signed statement in April 2013 expressing that the Veteran waives RO consideration of evidence newly submitted to the Board and desires "the Board to immediately proceed with adjudication of [the]appeal." The Board will accordingly proceed with a final appellate decision at this time. The Veteran presented testimony at a Board hearing in September 2008. A transcript of the hearing is associated with the Veteran's claims folder. FINDING OF FACT The Veteran did not suffer any additional left leg/left hip disability as a result of VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA, or as a result of 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 leg/left hip disability, to include residuals of osteomyelitis of the left leg/left hip, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, 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). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice pertinent to establishing service connection by a letter dated in June 2006. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. Later, in a January 2007 letter, the RO provided notice concerning the evaluation and the effective date that could be assigned should service connection (including compensation under the provisions of 38 U.S.C.A. § 1151) be granted, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006). The January 2007 letter was sent prior to the most recent RO-level readjudication of the case, as evidenced by the June 2012 supplemental statement of the case. The VCAA notice was therefore effectively timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained available medical treatment records, afforded the Veteran a physical examination in April 2009, obtained further medical opinions addressing this claim in September 2011 and January 2013, and afforded the Veteran the opportunity to give testimony before the Board. The Veteran's records in the custody of the Social Security Administration (SSA) have been obtained and associated with the claims-file. The Board finds that the most recent independent medical expert opinion obtained by the Board in January 2013 now properly addresses the critical questions at issue; the January 2013 independent medical expert opinion presents sufficient discussion of the pertinent history, clinical findings, medical principles, and expert determinations informed by review of the claims file such that it presents adequate and probative evidence in this case. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Board finds that the actions directed by the Board's prior remands as well as the directives of the January 2011 JMR have been adequately completed in this case. In particular, the Board again notes that the January 2013 independent medical expert opinion presents the sought probative evidence addressing the pertinent medical matters at issue in this case. The medical opinions of record now adequately address all of the essential questions raised by the issue on appeal, in accordance with the prior Board remands and the JMR. The Board finds that the actions directed by the prior remands and the JMR have been completed in substantial compliance with the terms and purposes of those directives. A hearing before the undersigned was held in September 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who conducts a hearing must (1) explain the issues and (2) suggest the submission of evidence that may have been overlooked. At that hearing, the undersigned explained the issue and the Veteran's representative presented contentions with reference to the necessary elements to establish entitlement to compensation under the provisions of 38 U.S.C.A. § 1151; actual knowledge of the elements of the issue on appeal was demonstrated (and has been repeatedly demonstrated since that time, including through the substantial written presentations of the Veteran's more recently appointed representative). The Board finds that if any error occurred in failure to suggest the submission of evidence that may have been overlooked, such error was harmless. It is clear from the Veteran's statements submitted throughout the appeal and his hearing testimony that he is aware that the evidence needed is evidence establishing that he has new or worsened disability as a result of an instance of fault or unforeseen event involved in his VA medical treatment. He consistently has made the appropriate allegations throughout the appeal. He has had VA physicians submit statements on the matter and, through his representative, he has presented detailed explanations of his theory seeking to establish both (1) that VA was at fault in providing inadequate medical care and (2) that the faulty medical care actually caused new or worsened disability. This case has been pending for many years and has previously been appealed to the Court with the Veteran's representative participating in the preparation of the JMR vacating the prior Board decision in this case; the Veteran and his active representative have demonstrated actual knowledge and understanding of what the evidence must show to support the claim. The Board has remanded this claim and obtained multiple independent medical opinions to develop the record with evidence addressing the Veteran's contentions and the complex medical questions at issue. The Veteran's representative has responded in detail to both independent medical opinions obtained by the Board with clear reference to the elements that must be shown to establish entitlement to the benefits sought; the Board obtained the second independent medical opinion partly in response to the contentions of the Veteran's representative. The Veteran, with the assistance of his representative, is clearly aware of the necessary elements to establish the entitlement sought, and clearly aware of and engaged in addressing the state of the evidence of the record. Thus, the Board finds that any error with regard to the notice and assistance contemplated in Bryant was harmless error; delaying this case further to send the Veteran a letter suggesting that he may submit evidence addressing the elements of his claim would be "an idle and useless formality." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. Analysis The Veteran is claiming entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of osteomyelitis left leg/left hip that he contends were incurred as a result of treatment at a VA medical center. Formerly, 38 U.S.C.A. § 1151 provided that "[w]here any Veteran suffers an injury or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation . . . awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such Veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such Veteran, disability or death compensation . . . shall be awarded in the same manner as if such disability, aggravation or death were service-connected." 38 U.S.C.A. § 1151 (West 1991). Earlier interpretations of the pertinent statute and regulations required evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA, or the occurrence of an accident or an otherwise unforeseen event, to establish entitlement to 38 U.S.C.A. § 1151 benefits. See, e.g., 38 C.F.R. § 3.358(c)(3) (1994). Those provisions were invalidated by the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court), in Gardner v. Derwinski, 1 Vet. App. 584 (1991). The Gardner decision was affirmed by both the United States Court of Appeals for the Federal Circuit, see Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), and the United States Supreme Court, see Brown v. Gardner, 513 U.S. 115 (1994). The United States Supreme Court, in affirming the Court's decision, held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. See Brown, supra. 38 C.F.R. § 3.358 was amended in 1995 to conform to the Supreme Court decision. The amendment was effective November 25, 1991, the date the Court issued the Gardner decision. 60 Fed. Reg. 14,222 (March 16, 1995). Subsequently, Congress amended 38 U.S.C.A. § 1151, effective for claims filed on or after October 1, 1997, to preclude benefits in the absence of evidence of VA carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an unforeseen event. Pub. L. No. 104- 204, § 422(a), 110 Stat. 2926 (Sept. 26, 1996), codified at 38 U.S.C.A. § 1151 (West 2002). The revised provisions of 38 C.F.R. § 3.358 state that where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, compensation will be payable for such additional disability. Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the Veteran. 38 C.F.R. § 3.358(c)(3). "Necessary consequences" are those that are certain or intended to result from the VA hospitalization or medical or surgical treatment. Id. The Board received the current claim in June 2006. As noted above, the amended version of 38 U.S.C.A. § 1151 has added the requirement that there must be evidence showing that the additional disability for which benefits are sought was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable. Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997, were amended. See 69 Fed. Reg. 46,426 (Aug. 3, 2004) [adding 38 C.F.R. § 3.361]. Those regulations largely implemented the provisions of 38 U.S.C.A. § 1151. In pertinent part, 38 C.F.R. § 3.361 provides as follows: In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses. 38 C.F.R. § 3.159 (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, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an 'absolute bar' to the service connection claim); Barr, 21 Vet. App. 303 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board may not make its own independent medical determinations; the Board must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In the Veteran's June 2006 claim, he stated that he "initially injured [himself] due to a fall at my home in July 2000. I immediately came to Fort Myers VAOPC for treatment. I was in severe pain in my left hip and left leg." He went on to state that he had already been diagnosed with peripheral neuropathy in his right leg; and that the clinic increased his medication for that condition. He stated that over the next few months, he continued receiving medication for the neuropathy; and that in November 2000, he developed side effects from the increased dosage. He states that he sought treatment from Cape Coral Hospital, where he was told that his left hip was totally disintegrated. He contends that he was transferred to Bay Pines VA medical clinic where he was diagnosed with osteomyelitis. He contends that if the Fort Myers VAOPC had properly treated his broken hip in July 2000, he would not have developed osteomyelitis. The outpatient treatment records only contain one record dated in July 2000. It reflects that on July 24, 2000, the Veteran was seen for a routine follow up examination for increased pain to his lower back and increased nerve pain and spasms. There is no indication in this record that the Veteran incurred a fall or that he sought treatment for left hip/left leg pain. The next notation is dated September 11, 2000. It states that the Veteran was still complaining of ongoing pain and swelling in his left leg and that he wanted to be treated on September 15th. A September 15th treatment note states that the Veteran complained of left leg edema and pain of two weeks duration. Once again, there was no mention of a July 2000 fall or injury. Instead, the Veteran reported that he fell onto concrete the very morning of the September 15th examination; and that he sustained a small abrasion to the medial left knee. The Veteran stated that the left leg "blew up overnight and has gotten worse" with pain measuring 10/10. A September 2000 ultrasound Doppler of the lower extremities showed evidence of deep vein valvular incompetence in the popliteals bilaterally and also in the right femoral. Otherwise, the venous system of both lower extremities appeared to be normal. There was no evidence of deep vein thrombosis. The Veteran underwent X-ray study of the left femur in October 2000. The clinical history reflects that the Veteran was status post fall one month ago with painful weight bearing. The examination was limited due to the Veteran's inability to assume the proper positioning. Consequently, the proximal one-third of the femur was not included. There was no fracture or abnormality in the distal two-thirds of the femur including the knee joint. The Veteran was admitted to Cape Coral Hospital in November 2000 with complaints of left hip pain. The report included a history of present illness in which the examiner stated that "in July of this year [the Veteran] began to have increasing weakness of the left leg, which progressed to the point where he had to use a wheelchair." The examiner then stated that the Veteran "had been seen for this at the VA, but the time frame and the amount of workup done at the VA is unclear." The examiner stated that both legs were of equal length; but that the Veteran had significant edema problems with both legs of unknown etiology. It was primarily resolved with the use of Lasix. The examiner then stated that on the previous Friday or Saturday, the Veteran tried to get up out of his wheelchair and either fell back into the wheelchair or fell onto the floor. "At this time he suffered injury to the left hip with shortening and external rotation of the hip and had tried to just stay home with this, but this morning the pain became severe enough that he had to come to the hospital via Emergency Medical Service." X-rays of the left hip showed "superior dislocation and a pseudoacetabulum with fragmentation of the head of the femur." He noted that this was consistent with hip dislocation, possible avascular necrosis. He was diagnosed with left hip pain and dislocation. In December 2000, the Veteran was admitted to the orthopedic service where he underwent further diagnostic study. He once again reported that he began having increasing difficulty with weakness in his left leg beginning in July 2000 (though there is no reference to a fall). It was again noted that just prior to admission (to the hospital) he fell from his wheelchair and noticed increased pain. While at the hospital, he was noted to have leukocytosis and an elevated Sed Rate. Review of X-ray study demonstrated a collapse and erosion of the femoral head. He was taken to the operating room in anticipation of doing a total hip arthroplasty. However, he had a significant collection of purulent drainage in the joint capsule. An incision and drainage were performed and the femoral head was resected. The examiner opined that the Veteran's period of convalescence would be six months. His condition upon discharge from the hospital was "improved." The Board notes that records from Dr. Kagan include an October 2001 treatment report in which Dr. Kagan stated that the Veteran was "involved in an accident in July '00. He presented to the ER at the VA hospital. I have the records. He was going to have a hip replacement but, at the time of the approach, it turned out that it was infected." The Board notes that a review of Dr. Kagan's records shows no findings attributed to a July 2000 accident. A December 2006 VA examination report presents the examiner's opinion that "I cannot resolve this issue without mere speculation. The pt. has an additional cause for AVN of the femoral head, beyond fracture, which includes drinking alcohol on a consistent basis." The examiner was "unable to explain the cause of the infection in the left hip," noting that "most hips with AVN do not spontaneously get infected nor do acute hip fractures." The examiner expressed that the Veteran "should have been afforded a better quality x-ray," and that the imaging inadequacy should have been recognized and "an additional x-ray should have been ordered." Although the December 2006 VA examiner expressed disagreement with the decision to not provide another X-ray, he makes no statement indicating whether the decision rises to the level of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. A September 2008 outpatient treatment report reflects that the Veteran requested a statement regarding his left hip condition for a compensation and pension examination. The Veteran once again complained that he incurred a hip injury due to a fall in the summer of 2000. He reported that he subsequently developed left lower extremity edema and was diagnosed with a left hip fracture and osteomyelitis that required surgical debridement including removal of part of the joint. The examiner stated that "In my opinion the osteomyelitis of the hip was likely a result of a hip fracture, yet orthopedic opinion should be considered as well. Unfortunately, the orthopedic doctor who took care of this patient no longer works at Bay Pines." The Board notes that the September 2008 examiner did not indicate whether she had reviewed the Veteran's claims file. It would appear not, since she failed to note that there are no clinical records dated July 2000 that indicate a fall or injury had occurred. This examiner's failure to account for significant contrary indications of record diminishes the probative value of the opinion. Moreover, the opinion is simply that osteomyelitis of the hip is likely the result of a hip fracture. There is no indication that the Veteran's osteomyelitis is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. The Veteran underwent a VA examination in April 2009. The examiner reviewed the claims file in conjunction with the examination. The Veteran once again complained of a fall which was followed by marked pain and swelling of the left lower extremity with edema and a sensation of "pins and needles from groin to foot." The examiner opined that any additional left leg/left hip disability was less likely than not the result of treatment (or failure to treat) the Veteran in 2000. The rationale for his opinion was that there is no contemporaneous evidence of a July 2000 fall. Instead, the examiner found that in September 2000 there was an acute vascular pathology that was addressed appropriately by ruling out DVT. The examiner found that the Veteran then sustained a fall in November 2000 that was addressed at a local facility prior to transfer to Bay Pines where he was diagnosed and treated. The examiner found that the subsequent follow up was appropriate. The January 2011 JMR directed that the Board should obtain an additional medical opinion that addresses the question of whether VA's failure to obtain an adequate X-ray study in October 2000 could have resulted in the Veteran's claimed additional disabilities. The Board obtained an independent medical opinion addressing questions at issue in September 2011. Informed by review of the claims-file, the September 2011 independent expert opined that there was no carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in the VA medical treatment at issue. The expert opined that the appropriate X-ray study was ordered by the VA clinician in October 2000, and the expert found that it was as likely as not that the Veteran was unable to be properly positioned due to his multiple pain complaints. The expert acknowledged that a better quality X-ray study would have been desirable, but cited that there had been no suggestion of how a better X-ray study could have been accomplished under the circumstances due to the Veteran's inability to assume the proper position. In response to the September 2011 expert's discussion of difficulty getting the Veteran in a proper position to obtain an optimal X-ray study, the Veteran's representative contends (including in an October 2011 statement) that (1) the Veteran could have been sedated to facilitate positioning for more adequate X-ray imaging, and (2) that alternative imaging such as a CT scan or MRI could have been employed to rule out hip fracture. The Veteran's representative contends that the fact that diagnostic imaging of the left hip was later accomplished in November 2000 indicates that adequate diagnostic imaging would have been possible in September and October 2000. The Veteran contends that his symptoms in September 2000 and October 2000 were sufficiently suggestive of left hip fracture to require additional diagnostic measures at those times. The September 2011 expert also found that, even assuming a hypothetical failure by VA to timely accomplish diagnostic imaging of the left hip, it is unlikely that any avascular necrosis was a result. In this regard, the September 2011 medical opinion cites that the Veteran's documented history of heavy alcohol use is one of the two most common risk factors for avascular necrosis (with the other being high doses of corticosteroids for long periods). However, the reasoning behind this answer is not entirely clear to the Board. It appears that the September 2011 expert believed that if the avascular necrosis is associated with heavy alcohol use then any delay in obtaining a left hip diagnosis in this case would not be a cause of additional disability; the Board cannot identify a persuasive basis in the September 2011 expert medical opinion for this particular conclusion. Furthermore, the Veteran's representative has responded to the medical opinion by citing medical treatise evidence to contend that while excessive alcohol consumption is a risk factor in making one more prone to developing avascular necrosis, the most common cause is joint injury. With consideration of the contentions of the Veteran and his representative concerning the absence of adequate diagnostic imaging prior to November 2000, and in light of remaining lack of clarity regarding the question of whether any alleged delay in left hip / left leg diagnosis in this case would be a likely cause of new or worsened disability, the Board obtained another independent medical opinion addressing questions at issue in January 2013. The January 2013 independent advisory opinion discusses the pertinent medical questions at length with thorough discussion of the relevant history informed by the contents of the claims-file. The independent expert explains that he believes that information documented in the November 2000 hospital admission note "would suggest an insidious onset of left lower extremity weakness requiring wheelchair use." The independent expert discusses that the medical evidence does not indicate an injurious fall in July 2000, although the Veteran began describing a July 2000 fall as part of his medical history beginning in December 2000. The independent expert also notes that the November 2000 hospital report suggests that the November 2000 fall was when "the Veteran and his wife first noted shortening and external rotation of the left lower extremity, which was new since his fall and prompted their subsequent visit to Cape Coral hospital." The independent expert notes that this November 2000 hospital examination led to the first evidence and diagnosis demonstrating superior subluxation and posterior dislocation of the femoral head with femoral head fragmentation. The independent expert notes that the September 2000 VA treatment records indicate that the Veteran suffered a fall in September 2000, and the independent expert notes that "at this time there was no note of left lower leg shortening or rotation." The independent expert opines that the September 2000 treatment records show that, in light of his medical history as of that time, the Veteran's shown "increased swelling to the left lower extremity was appropriately evaluated with the use of ultrasound, through which a DVT was ruled out." The independent expert notes that in October 2000 the Veteran underwent the sub-optimal X-ray study, and the independent expert acknowledges the Veteran's contention that this event constituted an instance of fault on the part of VA which led to new or increased disability. The independent expert explains that avascular necrosis of the femoral head has a wide variety of possible causes, including "many unknown etiologies" as "this condition ... is still not fully understood." The independent expert acknowledged that "[h]ip fracture is a common cause of avascular necrosis of the femoral head," while noting that the Veteran's "known history of alcohol abuse which has been extensively recorded through his medical record" is a significantly possible cause of the left femoral head avascular necrosis. The independent expert notes, with significance, that "nowhere in my review of the patient's medical records do I find a definitive radiographic report stating 'femoral neck fracture.'" Rather, the independent expert explains, "I do see both x-ray and CT scan reports that demonstrate femoral head fragmentation, dislocation and pseudoacetabulum" which are all "findings ... consistent with a chronic process such as that associated with avascular necrosis." In this regard, the independent examiner again emphasizes that it was not until the November 2000 fall that the Veteran had any notation of left lower extremity shortening or external rotation. The medical opinion presented by the January 2013 independent expert's report is that "from the history, presenting physical exam, and subsequent x-ray evaluation on November 13, 2000, it is fair to conclude that the patient's dislocation occurred from the fall sustained on or about November 10th or 11th 2000." Furthermore, although the independent expert "would concur with all of the previous expert medical opinions .... That the x-rays should have been of appropriate quality for definitive radiographic evaluation," he most significantly concludes: "I don't believe that the x-ray study obtained on October 2000 involved any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA." In this regard, the independent expert cites that "the patient's complex medical history and multiple musculoskeletal and neurologic conditions obscured the clinical picture" and "there were no overt physical exam findings consistent with hip fracture, and the physical exam findings in the bilateral lower extremities, (including pain and swelling to the left lower extremity), were somewhat chronic in nature." The independent expert further cites that "[a] change in imaging modality such as a CT or MRI, or the addition of sedation would require additional ordering and coordination which may not have been available at the time the patient presented for his x-rays." Furthermore, "[t]hese tests could have subsequently been ordered but again this would depend on clinical suspicion and the patient's current level of function and complaints." Also significantly, the January 2013 independent expert finds that: "[t]he acquisition of more thorough diagnostic imaging in my opinion would have not changed the course of the Veteran's condition." In this regard, the independent expert explains that "[a]vascular necrosis is a chronic process, and given the severity of the radiographic findings in November 2000, I believe it is clear that the patient's condition was occurring far longer than any reported fall in September 2000." The independent expert emphasizes: "I certainly do not believe that the patient's development of avascular necrosis was the result of a missed femoral neck fracture sustained in September 2000, as a finding of pseudoacetabulum is much more chronic in nature, as is the fragmentation and near complete resorption of the femoral head." The January 2013 independent expert report continues on to address the Veteran's osteomyelitis, and concludes that "[r]egardless of how this osteomyelitis occurred, I reiterate that there is no evidence to suggest that this osteomyelitis was the result of a previously undiagnosed proximal femoral fracture." The independent expert explains that "I see nothing in the medical record to suggest that there was a missed femoral neck or head fracture or that the possibility of a missed proximal femur fracture could have led to the development of avascular necrosis and osteomyelitis." The report concludes with: "Therefore, I do not believe that the VA is responsible for the development of this veteran's left hip/left leg pain and disability." The Board finds that the January 2013 independent medical expert opinion is highly probative evidence weighing against the Veteran's claim in this case. The opinion is informed by review of the claims file and addresses the pertinent questions with thorough discussion of rationale, medical principle, and the documentation of the Veteran's medical history. Not only did the January 2013 independent expert opinion find that there is no new or worsened disability resulting from the pertinent VA treatment at issue involving a sub-optimal October 2000 X-ray study, but the expert opinion also found that the sub-optimal October 2000 X-ray study did not involve any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The January 2013 independent expert is competent to provide those opinions, and the Board finds the expert's thorough discussion of the pertinent facts and medical principles to be sufficient. This probative evidence weighs significantly against the Veteran's claim in that it provides a competent adequate opinion from a medical expert on the medical questions and answers those questions by indicating that neither did the Veteran's pertinent VA treatment involve an instance of fault nor did any new or worsened aspect of the claimed disability result from the pertinent VA treatment. In April 2013, the Veteran and his spouse each submitted lay statements in support of the Veteran's appeal. The Veteran's statement reports (1) that he never had swelling in the left leg until a July 2000 fall, but has had swelling and steadily worsening symptoms since that time, and (2) that his wife noticed shortening of his left leg after the swelling went down in November 2000. The Veteran's wife's statement reports (1) that she witnessed the Veteran fall on his left hip on July 4, 2000, and that left leg swelling began at that time (with no swelling previously), (2) that she witnessed the Veteran fall on his left hip again in September 2000, followed by worsening swelling and pain that the VA clinic evaluated as vascular in origin, (3) that VA performed the sub-optimal X-ray study in October 2000, (4) that she witnessed the Veteran fall on his left hip again in November 2000 around which time she noticed reduced swelling in both legs and that the left leg was shorter and smaller than the right, and (5) X-ray study performed following the November 2000 fall revealed that the Veteran "didn't have a left hip" and surgery revealed "bone infection where hip had been." The Board acknowledges the factual contentions presented in these April 2013 statements. However, the testimony is essentially consistent with testimony previously provided in support of this claim. To the extent that the January 2013 independent medical expert opinion presents the expert's evaluation of the propriety of VA medical treatment in 2000, the April 2013 testimony does not present new facts or evidence that may be reasonably expected to impact that assessment. To the extent that the January 2013 independent medical expert opinion presents the expert's evaluation of whether the Veteran developed any new or worsened disability as a result of the contested VA medical care, the April 2013 testimony does not present new facts or evidence that may be reasonably expected to impact that assessment. Although the January 2013 independent expert's opinion discusses some noted contradictions of the testimony of the Veteran and his wife regarding a July 2000 fall, the essence of the expert's opinion relies upon an assessment of the details of documented contemporaneous medical reports and the implications of pertinent medical principles with reference to the details of contemporaneous medical evaluations. The Veteran's representative has submitted an April 2013 rebuttal of the January 2013 independent medical expert opinion. However, the Board notes that the Veteran's representative has not submitted a contrary medical opinion from a competent medical professional to rebut the medical analysis and conclusions of the January 2013 independent medical expert. To the extent that the April 2013 rebuttal presented by the Veteran's representative appears to attempt to persuade the Board to reject the January 2013 independent medical expert opinion in favor of accepting her own (the representative's) medical opinion and analysis of the case, the Board must note that opinions on complex medical matters from the Veteran's representative are not probative evidence. The Board finds that the questions regarding the proper medical protocols and standards for evaluation of a condition in the context of the Veteran's particularized history and presentation during the year 2000 involve medical complexity requiring that the proponent have specialized education, training, or experience. The Board finds that the questions regarding the etiology of the Veteran's complex internal disability of the left leg/left hip also involve medical complexity requiring that the proponent have specialized education, training, or experience. Lay statements on these medical matters are not competent evidence. To the extent that the April 2013 rebuttal seeks to contradict the January 2013 by presenting purportedly contrary general medical principles, the Board must find that the January 2013 independent medical expert is presumed to understand the pertinent general medical principles and is competent to determine how the applicable general medical principles apply to the circumstances and questions of this specific case. To the extent that the representative's April 2013 rebuttal asserts that VA medical professionals were at fault through making medically improper decisions and omissions in the Veteran's treatment during the pertinent period, the Veteran's representative is not shown to be competent to offer a probative opinion concerning medical decisions and indications. To the extent that the representative's April 2013 rebuttal challenges the January 2013 medical expert's interpretation of the Veteran's medical records and documented medical history, the Veteran's representative is not shown to be competent to offer a probative opinion regarding an interpretation of medical records or medical history. To the extent that the April 2013 rebuttal suggests the question: "wouldn't radiographic testing have limited the secondary disability that the Veteran now suffers from in his left lower extremity?", this question has been answered by the competent January 2013 independent medical expert report in that it concludes that no new or worsened disability resulted from the events of the Veteran's VA medical care during the pertinent period. To the extent that the April 2013 rebuttal suggests that the January 2013 independent medical expert was wrong to consider alcohol abuse as a part of the Veteran's pertinent risk profile for avascular necrosis, the Veteran's representative is not shown to be competent to offer a probative opinion regarding an interpretation of medical records or medical history; the representative's citation of a medical treatise (discussing principles the January 2013 medical expert is presumed to understand) does not transform the representative's medical opinion into competent or probative evidence. The April 2013 rebuttal includes a lengthy argument, citing various medical texts and studies, seeking to persuade the Board that the January 2013 medical expert opinion incorrectly applies applicable medical principles and guidelines in assessing the Veteran's medical history and the appropriateness of the medical care he received. However, the January 2013 independent medical expert is presumed to understand the pertinent medical principles, medical procedures, and medical standards of care. The Veteran and his representative have not submitted a competent medical opinion addressing the pertinent circumstances of this case and drawing conclusions to the decisive questions that are contrary to those conclusions drawn by the January 2013 independent medical expert opinion. The representative's April 2013 presentation discusses medical principles and invites the Board to draw inferences contrary to the January 2013 expert medical opinion, but this April 2013 presentation is not competent medical evidence on the matters addressed and carries no probative weight with which to contradict the January 2013 medical expert's analysis and opinion. The representative's April 2013 rebuttal asserts: "According to best practices, additional testing, with sedation if necessary, was warranted, even if it required 'additional ordering and coordination.'" This is the conclusion of the Veteran's representative based upon the representative's interpretation of how to apply the information in cited medical literature to the circumstances of this case; that application is a matter of medical expertise and the representative is not competent to offer an opinion requiring medical expertise. To the extent that the Veteran's representative seeks to insert her own medical opinion and application of medical principles to weigh against that of the January 2013 independent medical expert, the Board must rely upon the competent medical evidence in the January 2013 medical opinion and reject the April 2013 rebuttal prepared by the Veteran's representative who is not shown to be a medical professional. The medical treatise information submitted by the Veteran and his representative is general research material and does not offer any probative information pertaining to the Veteran's particular medical history, his particular medical treatment at VA, nor does the treatise evidence clearly attribute any new or worsened disability to the events of the Veteran's VA medical treatment. The evidence and argument described above and the items of correspondence submitted with the treatise evidence invite the Board to adopt an interpretation of the medical evidence that causally attributes new or worsened disability to an instance of fault on the part of VA treatment. However, the competent medical evidence of record does not support this conclusion and provides no basis for such conclusion without resort to pure speculation. The Board notes, however, that service connection may not be based on a resort to speculation or mere possibility. See 38 C.F.R. § 3.102. While the Board understands the contentions advanced in this case, the Board may not engage in its own medical analysis and, thus, may not reach the specific medical conclusions suggested by the submitted lay analysis or the submitted general medical literature. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Lay testimony is competent to provide evidence regarding symptomatology, but is not competent to provide evidence regarding diagnosis or etiology; the Board must rely upon the conclusions of medical experts regarding diagnosis and etiology. The preponderance of the probative competent medical evidence indicates that the Veteran does not have new or worsened disability as a result of an instance of fault on the part of the pertinent VA medical treatment. The April 2013 statements of the Veteran, the Veteran's wife, and the Veteran's representative, all direct attention towards establishing that the Veteran suffered a fall on his left hip on July 4, 2000. The Veteran's representative suggests that the January 2013 independent medical expert's opinion is rendered inadequate by the fact that the independent medical expert did not accept that the July 2000 fall occurred. The Board first observes that the critical points of analysis in the January 2013 independent expert medical opinion does not appear to depend greatly upon whether or not a July 2000 fall occurred; the evaluation of the propriety of the documented medical care and the evaluation of the likelihood that any alleged delay in diagnosis resulted in new or worsened disability do not appear to be dependent upon whether or not the expert believed that the alleged July 2000 fall occurred. In any event, the Board finds that the evidence significantly supports the January 2013 medical expert's view. The Board finds that the absence of any reference to such injury or symptoms on the July 4, 2000, VA medical report (the day the Veteran allegedly fell) together with the absence of any reference to such an event in the reports of medical history obtained from the Veteran and his wife by medical providers treating the left lower extremity in September 2000, October 2000, and again in November 2000, strongly contradict the subsequent testimony that a significant fall and left hip injury took place on July 4, 2000. The Board has considered the recent testimony of the Veteran and his spouse, and has considered the representative's April 2013 attempt to explain all of the contrary evidence. However, the Board finds that it is most reasonable to expect that the reports of pertinent medical history in the pertinent VA treatment records concerning the left hip (including the September, October, and November 2000 reports) would include some reference to a significant July 2000 fall with left hip injury if indeed such an event had occurred and been the starting point of the dramatic decline of left hip function as the recent testimony has asserted. The Board finds that the testimony regarding the occurrence of a significant left hip injury from a fall in July 2000 is not credible because it is inconsistent with contemporaneous documentation of the Veteran's and his spouse's prior accounts (on several occasions) of the left hip disability history presented when seeking medical treatment. The Board notes that various treatment records have referenced a July 2000 fall. A December 2000 treatment report includes a history of present illness in which the Veteran complained that he "began developing pain and weakness in his left leg in July 2000." A July 2008 treatment report referenced a "left hip injury that took place on July 2000." However, these treatment reports simply reflect the history provided by the Veteran at each examination. There are no clinical records dated July 2000 that document any fall, or treatment for a left leg or left hip; as discussed above, reference to a July 2000 fall injury is significantly absent in several reports of pertinent medical history from July to December 2000. To the extent that the representative's April 2013 statement emphasizes that multiple medical professionals have commented that the October 2000 VA X-ray study should have been more optimal, the Board acknowledges this fact but must also note that none of the probative medical opinions of record indicates that the Veteran has incurred new or worsened disability as a result of any instance of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable. The Board acknowledges the lay statements indicating that the Veteran has incurred additional left leg/left hip disability as a result of VA treatment. The Board recognizes that case law has established that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran is certainly competent to report a fall in July 2000 and to report that he sought VA treatment at that time. However, the Veteran's statements with regard to seeking VA treatment for a fall or injury in July 2000 are inconsistent with the overall record. The July 2000 VA record appears to document a regular follow-up visit and does not reference any injury at that time. This is precisely the place where it would be expected that medical personnel would have documented any such report by the Veteran or his spouse of injury; in turn, the Veteran and his spouse would be expected to report an event as pertinent to the history of the disability as the significant July 2000 fall injury now alleged to have been the moment of onset for a significant deterioration of health. The credibility of the lay testimony with regard to VA treatment for an injury in July of 2000 is further diminished by the subsequent VA record in September 2000 which references an injury two weeks before without suggestion of a July 2000 injury. To the extent that the Veteran's lay statements and his spouse's lay statements address the question of medical causation or medical negligence, as laypeople they are not competent to offer such an opinion. As discussed above, an appropriate medical opinion has been obtained, and it weighs against the Veteran's claim. The preponderance of the evidence is against a finding of any additional disability as a result of VA treatment due to carelessness, negligence or lack of proper skill or error in judgment or similar instance in fault, or due to an unforeseen event. Rather, it appears that the Veteran was properly treated for lower extremity complaints in September 2000. In November 2000, the Veteran apparently fell out of his wheelchair and injured his left hip. He sought treatment at a private facility and was transferred to a VA facility. It appears that the osteomyelitis of the hip was related to the November 2000 wheelchair injury, not to any July 2000 injury. This is consistent with the contemporaneous medical records, the comment by the September 2008 examiner that the osteomyelitis of the hip was likely the result of the hip fracture, and each of the probative medical opinions of record discussing the evidence in the claims-file. The probative medical evidence, particularly featuring the January 2013 independent medical opinion, indicates that the care at the VA facility was proper to the extent that any disagreement concerning the decisions surrounding the suboptimal X-ray did not rise to the level of carelessness, negligence, lack of proper skill, error in judgment, or some other incident of fault on the part of VA; nor does any evidence otherwise pertinently suggest an event that was not reasonably foreseeable. The probative medical evidence, particularly featuring the January 2013 independent medical opinion, indicates that it is unlikely that additional left hip disability was caused by or a result of VA treatment or VA failure to treat the Veteran in 2000. The probative medical evidence in this regard is based on review of the entire record and supported by a detailed rationale with reference to specific dates of treatment. The Board finds the medical opinions, now featuring the January 2013 independent medical opinion, to be persuasive and entitled to considerable weight. There is no significant probative evidence with contrary indications. The most probative evidence, the January 2013 independent medical expert opinion, probatively indicates that the shown medical history and medical treatment lead to a medical conclusion that the Veteran has no additional disability as a result of VA treatment due to carelessness, negligence or lack of proper skill or error in judgment, or due to an unforeseen event. Indeed, the probative January 2013 medical opinion indicates that neither of the necessary elements is met: (1) the expert finds no qualifying instance of fault on the part of VA meeting the pertinent threshold for the benefit sought, and (2) the expert finds no new or worsened disability resulting from the events associated with the pertinent VA treatment in 2000. The Board notes that the September 2011 independent medical opinion reached substantially the same conclusions and provided no support for the Veteran's claim. In sum, the Board must find that entitlement to compensation under 38 U.S.C.A. § 1151 for left leg/left hip disability, including residuals of osteomyelitis left leg/left hip, is not warranted. The preponderance of the evidence is against the Veteran's claim for 38 U.S.C.A. § 1151 compensation for left leg/left hip disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs