Citation Nr: 1333480 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-38 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left calf infection. 2. Entitlement to a rating in excess of 10 percent for left knee injury with fracture of the patella and tibial tubercle postoperative (left knee disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from February 1981 to January 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 (notice dated November 2009) rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2011 the Veteran presented testimony at a video conference hearing before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. In May 2013 the Veteran submitted additional medical records to the Board, concerning his left knee, without a waiver of initial consideration by the RO. As the additional evidence he submitted does not relate to or have a bearing on the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left calf infection, (being decided herein), it is not pertinent. The Board notes that the issue regarding the Veteran's left knee is being remanded and the RO will have the opportunity to consider the additional evidence (pertinent to the knee) on remand. The issue of entitlement to a rating in excess of 10 percent for a left knee disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have any current left calf disability or additional left knee disability as a result of VA medical treatment in 1992. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left calf infection have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the 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 entitlement to compensation under 38 U.S.C.A. § 1151 by a letter dated in February 2009. 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. That letter also provided notice concerning the evaluation and the effective date that could be assigned should compensation under the provisions of 38 U.S.C.A. § 1151 be granted. See Dingess, 19 Vet. App. 473 (2006). 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); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained the Veteran's VA and private treatment records; and his Social Security Administration records have been obtained and associated with the claims file. The Veteran was afforded a VA physical examination in September 2009. The Board finds that the September 2009 VA examination report is adequate for rating purposes and constitutes probative evidence in this case; as it presents sufficient discussion of the pertinent history, clinical findings, and medical principles with regard to residuals of a left calf infection. 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 Veteran was afforded the opportunity to give testimony before the Board at a video conference hearing before the undersigned in December 2011. 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 Veteran was advised of what is still needed to substantiate his claim; his testimony reflects that he is aware of what remains necessary. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. Legal Criteria, Factual Background and Analysis The Veteran is claiming entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left calf infection that he contends were incurred as a result of a failed attempt of a left knee arthrocentesis procedure on March 2, 1992. He asserts that the calf infection eventually resolved, but since that time he continued to have left knee pain, and occasional locking episodes with joint swelling. The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record (which does not contain any additional pertinent evidence or information). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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. 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). 38 C.F.R. § 3.358 was amended in 1995 to conform to the United States Supreme Court decision in Brown v. Gardner, 513 U.S. 115 (1994). 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 March 2009. 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 claim 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). 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 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). 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). On March 2, 1992, the Veteran was seen at a VA Medical Center (VAMC) complaining of decreased motion, constant pain, giving out, and intense swelling of his (service-connected) left knee. On physical examination there was mild erythema, effusion, and prepatellar bursa swelling with painful motion. Negative knee aspirate was noted; also noted was "Lateral Aspiration of 3cc clear...fluid." The diagnosis was internal derangement of the left knee. Also, in an undated treatment report it was noted that a left knee arthrocentesis was attempted after sterile preparation, and that drops of blood were aspirated. On March 16, 1992, the Veteran presented to the VAMC emergency room with a grossly swollen, erythematous, and ballottable left calf which was markedly painful. He was admitted with a primary diagnosis of left calf abscess; an incision and debridement was performed. He related a history of an open patella fracture in 1982 with three subsequent debridements in a 12-month period. He was taken emergently to the operating room where approximately 500 cc's of frank pus was found in the subcutaneous tissue. No tracts to the knee joint were found. An aspiration of the knee joint at the time of surgery was negative. Cultures of the left calf showed staph that was sensitive to penicillin, and he was put on IV nafcillin for 16 days. He had a bone scan, which showed marked uptake in the left patella, but, at that time, it was difficult to differentiate between degenerative arthritis and ongoing osteomyelitis. An indium scan showed no uptake in the left knee, which indicated that no chronic infection was going on. The bone scan changes were due to traumatic arthritis. In a March 18, 1992 clinical follow-up report, it was noted that the wound appeared very clean. There was no visible pus or evidence of infection. The physician noted that there was much less erythema and swelling than was expected (2 days after the initial procedure and after copious irrigation using the pulse lavage and antibiotic saline). The wound was closed and sterile dressing was applied. An April 1992 VA orthopedic clinic progress report notes the Veteran was seen for follow-up after an infected left calf incision and debridement. It was noted that there were no problems and no drainage. His leg was weak and he walked with a crutch. Physical examination revealed a well healed incision, and motor was 4/5 plantarflexion and 3/5 extensor hallucis longus, dorsiflexion. Range of motion was from 5 degrees to 80 degrees. There was patellofemoral crepitus, and negative varus-valgus instability and Lachman's. At this point the Board again notes that service connection had already been established for left knee disability at the time of the 1992 left calf infection. In an August 1992 rating decision, the RO considered whether an increased rating was warranted for the already service-connected left knee disability. In this rating decision, the RO discussed the hospitalization and determined that neither an increased rating for the left knee disability nor a temporary total rating were warranted as the infection was not related to the left knee disability. The Veteran and the service organization representing him at that time were notified of the determination by letter dated in August 1992, but a timely notice of disagreement was not filed, nor was new and material evidence received within one year. The August 1992 rating decision became final. In connection with the 1992 rating decision, the question of entitlement to compensation for the left calf infection under 38 U.S.C.A. § 1151 was not raised by the Veteran or addressed by the RO. The Veteran subsequently filed a claim under 38 U.S.C.A. § 1151 in 2009. In light of this procedural background, the 2009 claim has been addressed by the RO on the merits and the Board will do likewise. A new and material evidence analysis is not warranted since the 1992 decision cannot be reasonably viewed as having denied entitlement to compensation under 38 U.S.C.A. § 1151. On September 2009 VA examination, the Veteran reported that he originally injured his left knee while serving in the Navy in 1982. He stated that postservice, he continued to experience intermittent swelling of the left knee joint. In 1992, he experienced swelling in the left knee and had the joint aspirated to remove the fluid. Subsequent to that he developed a left knee joint infection which spread into this left calf. Surgery was required to drain the pus from his left calf and to irrigate the area. Infection of the left calf eventually resolved. However, since that time, he continued to have left knee pain, and occasional locking episodes with joint swelling. The diagnosis, in pertinent part was left calf infection 1992, required surgical irrigation, has resolved. It was noted that the records confirm that the Veteran required incision and drainage of a left calf infection following a procedure to drain fluid from his service-connected left knee. The examiner noted that the left calf infection in 1992 was most likely the result of that procedure. He further noted that the records confirm that a joint arthrocentesis procedure occurred, that a left knee arthrocentesis was attempted, but only drops of blood were aspirated, which likely indicates that the aspiration required multiple attempts. Since the details of the procedure were not found in the record, the appropriate skin cleansing may not have occurred prior to inserting the needle each time and led to the resulting infection in his left calf. It is standard practice to document the date, time, and skin preparation of each procedure in the medical record, and the lack of that information represents an error in judgment. The examiner concluded that based upon the information obtained from the Veteran and his claims file, the left calf infection is most likely a result of the left knee arthrocentesis procedure for his service-connected left knee condition. Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that the claim for compensation under the provisions of 38 U.S.C.A. § 1151 must be denied. In 2009, the Veteran filed a claim of entitlement to compensation for residuals of a left calf infection under 38 U.S.C.A. § 1151. It is undisputed that in 1992 the Veteran underwent a left knee arthrocentesis at a VAMC that most likely caused infection of his left calf. However, the left calf infection was treated in the VAMC and resolved without sequela or residual disability; as indicated in April 1992, (at a VA orthopedic clinic), when the Veteran was seen for follow-up of the incision and debridement of the infected left calf, there were no problems with drainage and the incision was well healed. In addition, treatment records, subsequent to April 1992, are devoid of any treatment related to the left calf. Furthermore, the September 2009 VA examiner noted that the 1992 left calf infection that required surgical irrigation had resolved. The medical records do not show that the Veteran sustained residual disability as a result of the left calf incision and debridement procedure or that he currently has a disability associated with a left calf infection. The medical evidence shows that in 1992 a left knee arthrocentesis was attempted and led to an infection in the Veteran's left calf, which was treated and resolved without residual disability or sequela. In the absence of proof of a present disability associated with the Veteran's left calf, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability at some point during the appeal period is required for a successful claim for VA benefits (and there was none in this case). McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the Board finds that there is no valid claim for VA compensation for residuals of a left calf infection under the provisions of 38 U.S.C.A. § 1151. Furthermore, the Board recognizes that case law has established that lay assertions may serve to support a claim 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, 492 F.3d 1372; see Buchanan, 451 F.3d at 1336. The Veteran is certainly competent to report symptoms associated with his left knee disability. However, in the context of this particular case the Board finds the findings and opinions by medical professionals regarding the lack of current disability related to the 1992 treatment to be more persuasive. The preponderance of the evidence is against a finding of any current residual disability as a result of VA treatment in 1992. In sum, the Board must find that entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a left calf infection is not warranted. The preponderance of the evidence is against the Veteran's claim for 38 U.S.C.A. § 1151 compensation for residuals of a left calf infection. 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 Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a left calf infection is not warranted. To this extent, the appeal is denied. REMAND The Veteran was afforded a VA examination in September 2009. At a December 2011 video conference hearing the Veteran was asked if he believed that his left knee was more severe since the last VA examination; he responded in the affirmative. The Board notes that in light of the Veteran's assertions that his disability has undergone a further increase in severity since the most recent examination (in September 2009), another VA examination is appropriate. VAOPGCPREC 11-95 (1995). Furthermore, the Board notes that VA has an obligation to assist claimants in obtaining evidence, to include relevant records from VA medical care providers. 38 C.F.R. § 3.159. As such, the RO should take this opportunity to obtain any recent VA records relevant to the Veteran's claim that have not yet been associated with the claims file, to include any relevant VA treatment records dating back to May 2011. The Board also notes that in May 2013, the Board received additional medical records in support of the Veteran's claim of entitlement to a rating in excess of 10 percent for a left knee disability without waiver of initial RO adjudication of such medical evidence. Preliminary review by the RO will be accomplished as a result of this remand. 38 C.F.R. § 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following actions: 1. The RO should obtain any VA treatment records (not already of record) relevant to the appeal from May 2011 to present. 2. The Veteran should be scheduled for a VA knee examination to ascertain the current severity of his service-connected left knee disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests, such as x-rays, should be accomplished. Examination findings should be clearly reported to allow for application of VA's rating criteria for knee disabilities. a) The examiner should clearly report range of motion of the left knee and clearly report at what point (in degrees), if any, that the range of motion is limited by pain. Any additional functional loss due to weakness, fatigue, and/or incoordination should be reported (in degrees if possible), including during flare-ups. b) The examiner should report whether there is recurrent subluxation or lateral instability and, if so, whether it is slight, moderate, or severe. 3. After all indicated development has been completed to the extent possible, the RO should readjudicate the claim in light of all the evidence of record, to include medical records submitted to the Board in May 2013 without a waiver of initial consideration by the RO. The Veteran and his representative should be furnished a fully responsive supplemental statement of the case and afforded an appropriate opportunity for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs