Citation Nr: 1334063 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-03 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for status post left rotator cuff repair as a result of Department of Veterans Affairs treatment. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active military service from September 1969 to January 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland California. A note in the file indicates that the Veteran cancelled his Board hearing scheduled for October 2010. Subsequently, in November 2011, the Board remanded the case for further development. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran underwent left rotator cuff repair at a VA Medical Center (VAMC) on October 25, 2005 that resulted in infection and drainage that ultimately led to incision and drainage procedures performed by VA in February and March 2006. 2. The Veteran experienced an additional disability of status post rotator cuff repair, with limited range of motion, atrophy and muscle weakness of the left shoulder (claimed as residuals of an infection in the Veteran's left shoulder), following surgery at a VAMC on October 25, 2005. 3. The VA treatment received by the Veteran for infection and drainage of the status post left rotator cuff repair in October 2005 through March 2006 was not rendered with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. 4. There was no lack of informed consent for, or occurrence of an event not reasonably foreseeable during, the October 25, 2005 left rotator cuff repair or VA treatment in October 2005 through March 2006. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for status post left rotator cuff repair as a result of Department of Veterans Affairs treatment have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). 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). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, notice was provided to the Veteran in July 2006, prior to the initial adjudication of the claim in November 2006. The Veteran was notified what information and evidence is needed to substantiate a claim for compensation under 38 U.S.C. § 1151, as well as of VA and the Veteran's respective duties for obtaining evidence. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim, such error was harmless given that the claim is being denied; hence, no rating or effective date will be assigned with respect to this claimed condition. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Veteran was subsequently notified as to the rating criteria and effective date provisions in December 2009. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes VA treatment records, VA examination reports, the November 2011 Board remand, an article entitled "Open, Mini-open, and All-Arthroscopic Rotator Cuff Repair Surgery: Indications and Implications for Rehabilitation," an article entitled "Rotator Cuff Tears: Surgical Treatment Options," an article entitled "Arthroscopic versus mini-open rotator cuff repair: a cohort comparison study," and article entitled "Minimally Invasive Rotator Cuff Repair Surgery: An Interview with Dr. James Dreese," a copy of a Federal Torts Claims Act settlement, and the Veteran's lay statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issue that has not been obtained. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's appeal. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Indeed, even when the adequacy is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran was provided with a VA examination (the report of which has been associated with the claims file) in August 2006. In his January 2007 Notice of Disagreement, the Veteran stated that he did not believe an internal review by a VA examiner provides an objective review of his claim. In his January 2008 Substantive Appeal, the Veteran requested an external, independent medical opinion be obtained in the review of his appeal. In an October 2011 written brief presentation, the Veteran's representative stated that the August 2006 VA examiner is a physical medicine/rehabilitation specialist, and not an orthopedist or orthopedic surgeon, and that the examiner had lost his board certification. In November 2011, the Board remanded the issue on appeal, in part, to provide the Veteran with another VA examination to address the Veteran's assertions regarding the timely identification and treatment of his infection. The Veteran was provided with another VA examination (the report of which has been associated with the claims file) in December 2011 with a different examiner. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Additionally, neither the Veteran nor his representative has questioned the adequacy of the December 2011 VA examination. The Veteran was offered the opportunity to testify at a hearing before the Board, but withdrew a hearing request in October 2010. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Finally, in November 2011, the Board remanded this claim for further development and to ensure that all due process requirements were satisfied. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand. See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). In the November 2011 remand, the Board instructed the AOJ to obtain all relevant documents pertaining to the Veteran's consent related to the October 2005 VA left shoulder surgery as well as any additional available documents related to the October 2005 surgery, including operating room notes and pathology reports, and associate them with the claims file. In a September 2013 appellate brief presentation, the Veteran's representative claimed that the AOJ failed to comply with the Board's November 2011 remand order by failing to include a discussion concerning the adequacy of the informed consent process associated with the Veteran's October 25, 2005 left shoulder surgical procedure. The representative stated that the VA treatment records associated with the claims file as to the Veteran's informed consent do not contain a signature by the Veteran; thus, informed consent still had not been adequately represented. The Board finds that the November 2011 remand instruction with regard to the Veteran's informed consent has been substantially complied with. The AOJ associated an October 25, 2005 treatment record obtaining the Veteran's informed consent prior to the left shoulder surgery and the October 25, 2005 operation report with the claims file. These records, in concert with the Veteran's own lay statements, adequately answer the question of informed consent. Finally, the Board instructed the AOJ to provide an appropriate examination and thereafter readjudicate the Veteran's claim. As discussed above, the Veteran was provided such an examination in December 2011 and the Board finds that it was adequate and responsive to the Board's remand directives. The Veteran's claim was readjudicated by the AOJ in January 2012 and a supplemental statement of the case was issued. As such, the Board finds that there has been substantial compliance with its November 2011 remand directives and therefore no further action is required. See Stegall, 11 Vet. App. at 271; D'Aries, 22 Vet. App. at 105. Entitlement to 38 U.S.C.A. § 1151 Compensation Under the provisions of 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability which is not the result of the veteran's own willful misconduct or failure to follow instructions, disability compensation may be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected. See 38 C.F.R. § 3.361. If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C.A. § 1151. First, the additional disability may qualify for compensation if the disability is not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(a). To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent. 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. 38 C.F.R. § 3.361(d). To determine whether there was informed consent, VA will consider whether the health care provider 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. Id. Regulations further provide that compensation is not payable for the necessary consequences of VA treatment properly administered with the express or implied consent of the veteran or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain or intended to result from the treatment provided. Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would, in fact, be administered. 38 C.F.R. § 3.361. In this case, the Veteran contends that VA failed to timely identify and treat the infection he developed in his left shoulder after rotator cuff repair surgery conducted on October 25, 2005. The Veteran further contends that the failure to provide adequate and competent post surgical care has resulted in the advancement of the infection process that left him with permanent residuals involving his left shoulder. As such, the Veteran maintains that he is entitled to VA disability benefits under 38 U.S.C.A. § 1151. In his May 2006 claim, the Veteran stated he was not provided pain medication subsequent to the left rotator cuff surgery. The Veteran stated that, within two weeks of the surgery, he developed pus-like drainage at the surgical site for which he sought treatment and for which he continued to seek treatment for the next four months. The Veteran asserts that, during this period, he asked whether he should be placed on antibiotics and was advised that the operating physician indicated he should not be. The Veteran further stated that, several months after the original rotator cuff surgery, he left shoulder was operated on again and at that point he was prescribed antibiotics, including home IV therapy. In his January 2007 Notice of Disagreement and January 2008 Substantive Appeal, the Veteran contends that, while he recognized and acknowledged the inherent risk in the surgery performed on his left shoulder, the VA failed to identify the symptoms of an infection in a timely manner following the left rotator cuff surgery resulting in additional disability. In an October 2011 written brief presentation, the Veteran's representative asserts that the Veteran incurred permanent shoulder damage because the rotator cuff surgery on October 25, 2005 was improperly done and not properly cared for afterwards. The representative contends that the VA physician only recommended open rotator cuff surgery even though much less invasive surgical techniques were well known and established at the time. The representative stated that an October 20, 2005 nurse note does not indicate that any alternatives were discussed. Additionally, the representative stated that orthopedic surgery is normally done by orthopedists or orthopedic surgeons. The Veteran's representative further stated that, after the October 25, 2005 surgery, infection set in and was only treated by topical antiseptics for months and that the Veteran was no provided antibiotics before or during surgery, or for some time afterwards. The representative stated that, since operating room notes and pathology were not present in the file, there is no basis to conclude the surgery went well. The representative stated that the Veteran was not on antibiotics for the surgery even though that appears to be common with an open rotator cuff repair surgery according to the Academy of Orthopaedic Surgeons (AAOS). First, the Board finds that the Veteran suffered an additional disability of status post rotator cuff repair, with limited range of motion, atrophy and muscle weakness of the left shoulder, as noted on the December 2011 VA examination report. VA treatment records reflect underwent left rotator cuff repair surgery in October 2005. The Veteran subsequently developed some persistent drainage from his wound. The Veteran underwent an incision and drainage of a deltoid cyst in February 2006. On March 2006, the Veteran underwent an incision and drainage and lavage of the left shoulder, which had septic arthritis. Thus, the outcome of the Veteran's claim for 38 U.S.C.A. § 1151 rests on whether the additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or was the result of an event that was not reasonably foreseeable. In this case, the weight of the evidence demonstrates that compensation under 38 U.S.C.A. § 1151 is not warranted because the VA treatment provided for the infection in the Veteran's left shoulder subsequent to the October 25, 2005 left rotator cuff repair surgery was not proximately caused by 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 that the infection of the Veteran's left shoulder status post rotator cuff repair was the result of an event that was not reasonably foreseeable. The evidence of record reflects that the Veteran sought VA treatment on October 3, 2005 after sustaining an acute injury to his left shoulder. On October 20, 2005, the Veteran was referred to orthopedics for his left shoulder injury. According to October 20, 2005 VA treatment records, an MRI of the left shoulder showed a full thickness tear of the anterior aspect of the supraspinatus tendon. The VA orthopedist explained the procedure, including alternatives and risks, to the Veteran and open repair of the rotator cuff and subacromial decompression was scheduled. The treatment records reflect the Veteran was provided a prescription for pain medication, specifically hydrocodone, on October 20, 2005. October 25, 2005 VA treatment records reflect that the nature and purpose of the operation, possible alternative methods of treatment, the risks involved and the possibility of complications to include bleeding and infection were explained to the Veteran. The treatment records note that the Veteran agreed to proceed and that he underwent left rotator cuff repair surgery. The October 25, 2005 surgery report indicates that the Veteran received 1 gram of IV Keflex, an antibiotic, preoperatively and throughout the surgery the wound was irrigated with non-antibiotic containing solution. The report notes that there were no complications during the surgery. October 25, 2005 VA treatment records reflect that the Veteran was provided Vicodin and instructed to take one to two tablets every six hours for pain. An October 26, 2005 VA treatment record indicates that the Veteran reported no pain relief from the Vicodin and was switched to a different pain medication. A November 7, 2005 treatment record notes that Veteran had the staples removed from his left shoulder. A November 10, 2005 VA treatment record notes that the Veteran reported a bloody pus-like drainage from his left shoulder on his bed sheets. The Veteran denied fever and chills. The Veteran's left shoulder was examined and there was a 1 millimeter superficial dehiscence (i.e., opening) mid incision. The medical professional was able to express serous drainage. Tenderness to palpation was noted, but there was no surrounding fluctuance or foul odor. The November 10, 2005 VA treatment record indicates a gram stain and culture of the left shoulder was sent. The Veteran was instructed to watch if he developed fever or chills or if there was increasing redness or foul odor around the left shoulder incision. The record indicates the VAMC would follow up with the Veteran the following week. A November 22, 2005 VA treatment record reflects that the Veteran again complained of serous like drainage with saturation of a pillow at night often. The Veteran denied fever or chills. The treatment record notes a 2 millimeter incision with serous drainage expressed, but no odor or erythema. Silver nitrate was applied to the incision site and the Veteran was instructed of how to do this at home. The record indicates the VAMC would follow up with the Veteran the following week. A November 29, 2005 VA treatment record indicates the Veteran continued to complain of thick white pus-like discharge from his left shoulder incision. The Veteran denied fever or chills. Upon physical examination, the proximal incision site of the shoulder was open approximately one centimeter with thick white discharge. The record indicates there was no undermining, odor, or surrounding erythema. The shoulder incision was cleaned with normal saline solution and covered with dry dressing. A gram stain and culture of the shoulder was sent. Results from the culture, as detailed in a December 13, 2005 treatment record, state that no organisms were seen. The Veteran was instructed to watch if he developed fever or chills or if there was increasing redness or foul odor around the left shoulder incision. The record indicates the VAMC would follow up with the Veteran the following week. A December 6, 2005 treatment record notes that the Veteran reported continued drainage of the left shoulder, but that it had decreased. The Veteran denied fever or chills. Physical examination of the Veteran's shoulder indicated a half centimeter opening with milk discharge, but noted no odor or erythema. The record indicates that there was no evidence of infection. The shoulder incision was cleaned with normal saline solution and covered with dry dressing and noted to schedule a follow up appointment for the following week. December 13, 2005 VA treatment records indicate that the left shoulder mid incision was almost healed with a pin-point opening and there was no drainage or erythema. The record notes that the wound was closing and healing well and to schedule a follow up appointment for the following week. A December 15, 2005 VA treatment record notes that the drainage of the left shoulder continued to persistently weep but was improving and was currently a half centimeter opening with yellow thick discharge but no odor or surrounding erythema. The record notes that two previous cultures had been negative. A December 27, 2005 VA treatment record notes that the Veteran's left shoulder incision was closed and there was no drainage from the site. A December 29, 2005 VA treatment record notes that the Veteran came in complaining of left shoulder pain and reported pus drainage from the opening on the suture line. The record indicates that there was a raised pustule on the center of the suture line, that the pustule opened, pus and then a cloudy, yellow stream of drainage expressed from the lesion, and that the entire area was warm to the touch. The wound was dressed, the Veteran was started on antibiotics, and a culture was submitted to the lab for testing. A January 10, 2006 VA treatment record notes that the Veteran reported the left shoulder incision had scabbed over for the prior two weeks. The record indicates limited range of motion of the shoulder. A January 24, 2006 VA treatment record notes that the left shoulder wound was closed. A February 2, 2006 VA treatment record reflects that the Veteran called the VAMC complaining of a "soft knot" at the surgical site of the left shoulder. The Veteran was instructed to make an appointment to see his doctor within the week. As indicated on a February 7, 2006 VA treatment record, at an initial physical therapy evaluation the Veteran reported drainage from the suture line of the left shoulder incision since December 2005 and that he had started on antibiotic treatment over two weeks ago due to infection of the incision site. The Veteran reported recently an increased swelling of the superior aspect of the incision. The VA treatment record notes moderate tenderness at the incision site. There was no therapy done due to the cyst on the Veteran's left shoulder. A February 14, 2006 VA treatment record notes that there was a spongy marble sized cyst on the anterior aspect of the left shoulder, lateral to left acromioclavicular joint. The record indicates the shoulder wound was closed with no drainage expressed. The record notes that an excision and exploration of the cyst was scheduled. A February 23, 2006 VA treatment record reflects that the Veteran underwent an incision and drainage of the left shoulder cyst. VA treatment records reflect that the Veteran had negative cultures since the incision and drainage and was on antibiotics. A March 7, 2006 VA treatment record notes that the Veteran's left shoulder incision continued to drain serous fluid with arm movement. The Veteran was referred to the San Francisco VAMC for further treatment. A March 8, 2006 VA treatment record notes that the need for urgent surgery to complete an incision and drainage of the joint because the joint was likely infected. The record reflects that the Veteran wanted to obtain a second opinion. As reflected on VA treatment records, the Veteran was admitted to the VAMC on March 20, 2006 for repeat incision and drainage of the left shoulder, completed on March 24, 2006. A March 30, 2006 VA treatment record notes the Veteran was approved for six weeks of outpatient IV antibiotic treatment. A June 5, 2006 VA treatment record notes that the Veteran completed antibiotics two weeks ago and there were no symptoms of persistent infection. A July 24, 2006 VA treatment record indicates that the left shoulder incision was well healed with no symptoms of persistent infection. In August 2006 the Veteran underwent a VA examination. The VA examiner noted the Veteran had loss of function and decreased range of motion of the left shoulder as residuals from the October 25, 2005 left rotator cuff repair followed by infection and drainage over an extended period of time, followed by the February 6, 2006 incision and drainage. The examiner noted the Veteran could not do heavy maneuver with his left upper extremity or any heavy lifting or work over the head. The examiner opined that the decision to do surgery was proper and noted that, while the surgical procedure went very well, some complications are always possible after surgery and can be expected in some cases, which is what happened here. While the examiner opined with regard to the treatment provided to the Veteran post left rotator cuff repair, the Board, in the November 2011 remand, found that the August 2006 VA examiner's opinion did not adequately address the Veteran' assertions regarding timely identification and treatment of his infection; thus, remanding for a subsequent VA examination. In December 2011, pursuant to the Board's remand instructions, the Veteran underwent another VA examination. X-rays of the Veteran's left shoulder showed he had cystic changes in the humeral head and greater tuberosity area and some degenerative changes in the glenohumeral joint as well as surgical changes in the acromioclavicular joint. The VA examiner diagnosed the Veteran with status post rotator cuff repair, status post incision and drainage of infected wound and soft tissues and incision and drainage and lavage of septic arthritis left shoulder. The VA examiner noted that the Veteran did exhibit an additional disability as a result of the multiple surgeries, specifically noting limited range of motion, atrophy of the shoulder and muscle weakness. The examiner opined that infection is a well known complication of surgery on the shoulder. In regard to the surgery chosen, open rotator cuff surgery, the examiner noted that it is a choice that the surgeon makes with the patient in regard to arthroscopic procedures or open procedures and that the results are essentially the same except that the rehabilitation time is slightly shorter with arthroscopic surgery in general. The examiner opined that septic arthritis, limitation of motion and some atrophy are known complications of infection. The examiner opined that the additional left shoulder disability was not caused by VA's failure to timely identify and treat the Veteran's infection because the cultures were essentially negative initially and, when these were found to be positive, the Veteran was started on antibiotics and transferred to the San Francisco VAMC where his final surgery was performed. In regard to the timing of the antibiotics, the examiner opened that it was a decision done with the assistance of the infectious disease consultant at the San Francisco VAMC. Based on the foregoing, the Board finds that the weight of the evidence of record demonstrates that the October 2005 through March 2006 VA treatment of the infection in the Veteran's left shoulder status post rotator cuff repair was not rendered with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. As noted above, the Veteran contends, in his May 2006 claim, that he was not provided pain medication subsequent to the left rotator cuff surgery; however, this contention is not supported by the evidence of record. This statement is directly contradicted by VA treatment records. Specifically, October 20, 2005 VA treatment records reflect the Veteran was provided a prescription for pain medication, specifically hydrocodone. October 25, 2005 treatment records note that the Veteran was provided pain medication, specifically Vicodin, following the rotator cuff surgery and prior to discharge. An October 26, 2005 VA treatment record indicates the Veteran reported no pain relief from the Vicodin and, as such, was prescribed a different pain medication. As such, the Veteran's contention that he was not prescribed pain medication is not supported by the contemporaneous VA treatment records. This evidence is more probative than the Veteran's recent assertion that he was not prescribed pain medication subsequent to the left rotator cuff surgery, voiced in connection with a claim for VA compensation benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Additionally, there is no indication in the record that the VA treatment records are incomplete. As such, the Board presumes the VA treatment records accurately document the history of the Veteran's treatment for left rotator cuff surgery and the subsequent infection at VA. See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). Next, the Veteran's representative, in the October 2011 written brief presentation, contends that the Veteran was no provided antibiotics before or during surgery. As to the assertion that the Veteran did not receive antibiotics before surgery, the October 25, 2005 surgery report indicates that the Veteran received 1 gram of IV Keflex, an antibiotic, preoperatively. There is no indication in the record that the VA treatment records as to the October 25, 2005 surgery are incomplete. While the Veteran's representative, in the October 2011 written brief presentation, stated that, since operating room notes and pathology were not present in the file, these records have subsequently been obtained. Pursuant to the Board's November 2011 remand instructions, the October 25, 2005 surgery report has been associated with the claims file and notes that there were no complications during the left rotator cuff repair surgery. As such, the Board presumes the VA treatment records accurately document the history of the Veteran's treatment for left rotator cuff surgery and the subsequent infection at VA. See id. As to the assertion by the Veteran's representative that the Veteran was not provided antibiotics during surgery even though that appears to be common with an open rotator cuff repair surgery according to the Academy of Orthopaedic Surgeons (AAOS), the Board recognizes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge (i.e., observing an infection on his leg). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, 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). Neither the Veteran nor his representative has been shown to have the necessary medical training and/or expertise to opine that the lack of antibiotics administered during surgery was a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Such opinion of VA fault requires both knowledge of what the standard of medical care should have been, how the standard was breached by VA medical provides, and the complex question of how the breach of standard of medical care was the cause of his left shoulder infection. In this matter, the Board finds that the Veteran's representative is not competent to opine with regard to the use of antibiotics during the left rotator cuff repair surgery because this requires specific medical knowledge and training as to the appropriateness of antibiotics. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Conversely, the Board finds the VA's orthopedist's opinion, as reflected on the October 25, 2005 surgery report, that there were no complications with the surgery to be a greater probative weight. An orthopedist has the required specialized knowledge of orthopedic procedures and the appropriateness of antibiotics during an open rotator cuff repair surgery. The Veteran's representative, in the October 2011 written brief presentation, also contends that the left rotator cuff surgery was improperly done because the VA physician only recommended open rotator cuff surgery and that October 20, 2005 nurse note does not indicate that any alternatives were discussed. In support of this contention, the Veteran has submitted four articles regarding rotator cuff repair surgery. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). The articles entitled "Open, Mini-open, and All-Arthroscopic Rotator Cuff Repair Surgery: Indications and Implications for Rehabilitation" and "Rotator Cuff Tears: Surgical Treatment Options" provide overviews of the different types of surgeries currently used for rotator cuff repair. The article entitled "Arthroscopic versus mini-open rotator cuff repair: a cohort comparison study" addresses arthroscopic rotator cuff repair and mini-open rotator cuff repair but does not discuss open rotator cuff repair, the type of surgery performed on the Veteran. The article entitled "Minimally Invasive Rotator Cuff Repair Surgery: An Interview with Dr. James Dreese" discusses only arthroscopic surgery, and not open rotator cuff repair surgery. None of these articles suggest the open rotator cuff repair surgery performed on the Veteran was improperly done nor do the articles assert that open rotator cuff repair surgery is an improper surgical procedure. By contrast, an October 25, 2005 VA treatment record notes that possible alternative methods of treatment were discussed with the Veteran and that the Veteran agreed to proceed. Additionally, the December 2011 VA examiner opined, in regard to the surgery chosen (i.e., open rotator cuff repair surgery), that it is a choice that the surgeon makes with the patient in regard to arthroscopic procedures or open procedures and that the results are essentially the same except that the rehabilitation time is slightly shorter with arthroscopic surgery in general. As such, the Board accords the four articles submitted by the Veteran less probative weight then the December 2011 VA examination report that specifically evaluated the facts and circumstances surrounding this particular case, including the appropriateness of the surgery performed and the October 25, 2005 VA treatment records that note no complications in surgery and that alternatives were discussed prior to surgery. Next, the Veteran's representative also contends, in the October 2011 written brief presentation, that orthopedic surgery is normally done by orthopedists or orthopedic surgeons. October 25, 2005 treatment records reflect that the left rotator cuff surgery was conducted by a VA orthopedist. The Veteran's main contention is that VA failed to timely identify and treat the infection he developed in his left shoulder after rotator cuff repair surgery conducted on October 25, 2005 and that this failure to provide adequate and competent post surgical care resulted in the advancement of the infection process that left him with permanent residuals involving his left shoulder. However, the Veteran does not have the necessary medical training and/or expertise to opine that his left shoulder infection would not have occurred if not for a claimed omission of VA treatment (i.e., failure to begin antibiotics at an earlier point during his treatment), including specifically to an opinion of VA fault or negligence in rendering medical care. Such an opinion of VA fault requires both knowledge of what the standard medical care should have been, how the standard was breached by VA medical providers, and the complex question of how the breach of the standard of medical care was the cause of his left shoulder infection that lead to the additional disability of some limitation of movement of the shoulder and atrophy. As such, the Board accords the Veteran's lay statements as to potential fault or negligence on VA's part lesser probative weight. As detailed above, the Veteran underwent a VA examination in December 2011. As to the Veteran's additional left shoulder disability, the examiner opined that infection is a well known complication of surgery on the shoulder and that the additional disability was not caused by VA's failure to timely identify and treat the Veteran's infection because the cultures were essentially negative initially and, when these were found to be positive, the Veteran was started on antibiotics and transferred to the San Francisco VAMC where his final surgery was performed. The examiner also noted that the timing of the antibiotics was a decision done with the assistance of the infectious disease consultation at the San Francisco VAMC. The Board finds the December 2011 VA examination adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Therefore, the Board finds the VA examiner's opinion to be of great probative value. For these reasons, the Board finds that the left shoulder infection was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment in October 2005 through March 2006. In addition, the Board finds that there was no absence of informed consent shown, and the evidence does not show the occurrence of an event that is not reasonably foreseeable during VA treatment from October 2005 through March 2006. See 38 C.F.R. § 3.361(d)(2). In an October 2011 written brief presentation, the Veteran's representative claims that, while the informed consent form was allegedly signed on October 25, 2005, it is not present in the claims file and there is no disinterested evidence of the accuracy or thoroughness of the informed consent or of the Veteran's signature. The Board acknowledges that the signed informed consent form has not been associated with the claims file, but finds that informed consent has been shown by the other evidence of record. An October 25, 2005 treatment record notes that the Veteran was informed of the nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications including bleeding and infection. The record notes the Veteran was provided with the opportunity to ask questions, all questions were answered, and the Veteran agreed to proceed. Additionally, in his January 2007 Notice of Disagreement and January 2008 Substantive Appeal, the Veteran stated that he recognized and acknowledged there is an inherent risk in the surgery that was performed. As such, the Board finds that the Veteran provided informed consent prior to the October 25, 2005 surgery. Additionally, infection is a foreseeable risk of rotator cuff repair surgery. The Board is cognizant of the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Schertz v. Shinseki, No. 11-2694 (Vet. App. Sept. 26, 2013). In Schertz, the Court held that, with regard to the determination as to whether an event is reasonably foreseeable, the actual foreseeability of an event by a treating physician or other medical professional is not dispositive. Rather, the Court held that the test of foreseeability is what an objective "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed to the patient in connection with the informed consent procedures of 38 C.F.R. § 17.32. In the present case, the Board finds that the post surgery infection in the Veteran's left shoulder was reasonably foreseeable because an objective reasonable health care provider would have considered it to be an ordinary risk of surgery. The Board further finds that this risk was disclosed to the Veteran prior to surgery during the informed consent process when the treating physician explained the reasonably foreseeable risks associated with the open rotator cuff surgery. As stated above, the October 25, 2005 VA treatment record specifically notes that complications, including the possibility of infection, were discussed with the Veteran during the informed consent process. Further, the December 2011 VA examiner opined that infection is a well known complication of surgery on the shoulder. The August 2006 VA examiner also noted that infection following surgery does happen and can be expected in some cases. The Board finds that the VA examiners' statements that infection is a known complication of surgery is consistent with the informed consent obtained from the Veteran and establishes that the event was reasonably foreseeable. For these reasons, the Board finds that a preponderance of the evidence is against the claim for compensation for a right above the knee amputation under 38 U.S.C.A. § 1151, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for status post left rotator cuff repair as a result of Department of Veterans Affairs treatment, is denied. ____________________________________________ K.J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs