Citation Nr: 1334412 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-20 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for additional disability due to July 1996 left foot surgery at the Palo Alto VA Medical Center. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran had active service from July 1943 to January 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In June 2011, the Veteran withdrew his request for a videoconference hearing before a Veterans' Law Judge. The Veteran's claim was remanded by the Board in November 2011 and May 2013 and has been returned to the Board for review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence of record does not reflect that the Veteran has an additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for additional disability as a result of July 1996 left foot surgery at the Palo Alto VA Medical Center 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 VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The December 2007 letter satisfied the duty to notify provisions and notified the Veteran of regulations pertinent to the establishment of an effective date and disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As to the duty to assist, the Board finds that VA has secured all available and identified evidence including VA treatment records. VA treatment records were obtained and associated with the claims file in accordance with the May 2013 remand. Stegall v. West, 11 Vet. App. 268 (1998). As discussed by the Veteran, the July 1996 operative report is not of record. However, the Board finds that further efforts to locate the operative report would be futile. In May 2008, the RO requested all records pertaining to the July 1996 surgery. The associated records did not include an operative report, but included a signed consent form, pre-operative and post-operative notes and follow-up treatment. Again, the RO requested all VA treatment records from December 1996 to the present. Again, an operative report was not included in the obtained records. Thus, further efforts to obtain a July 1996 operative report would be futile. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2) (2013). The Veteran was provided VA examinations in September 2008 and December 2011. In the November 2011 remand, the Board found that the September 2008 VA examiner's opinion was inadequate because it was speculative. The Board remanded the Veteran's claim to obtain an addendum opinion to the September 2008 VA examination report. An examination with an addendum opinion was provided in December 2011. As explained in greater detail below, the Board finds the examiner's opinion regarding whether the Veteran had an additional disability as a result of the fault of VA to be adequate. The examiner reviewed the claims file, examined the Veteran, discussed the clinical findings, and provided an opinion with supporting rationale. However, with respect to whether the event was reasonably foreseeable, the Board finds the December 2011 VA examiner's opinion to be inadequate. The examiner first opined that the event was reasonably foreseeable. However, the examiner subsequently opined that it was not reasonably foreseeable. This opinion is contradictory and therefore inadequate. To resolve the discrepancy, the RO requested an opinion from an independent medical examiner. The July 2012 independent medical examiner provided adequate opinions, citing to the evidence relied upon, and included supporting rationale. The Board acknowledges that the examiner did not use the standard language-whether it is "at least as likely as not." However, the examiner used unequivocal terms when expressing the opinions. Therefore, the Board finds that the aforementioned opinions were adequate and the November 2011 remand was substantially completed. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Legal Criteria For all claims filed on or after October 1, 1997, as in this case, disability compensation under 38 U.S.C.A. § 1151 may be awarded where: (1) the Veteran incurred a qualifying additional disability that was not the result of his own willful misconduct, (2) the additional disability was caused by hospital care, medical or surgical treatment, or examination provided by VA or in a VA facility, and (3) the proximate cause of the disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or (b) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); Viegas v. Shinseki, 705 F.3d 1374, 1377 (Fed. Cir. 2013). Disability benefits under 38 U.S.C.A. § 1151 are awarded "in the same manner as if such additional disability or death were service-connected." 38 U.S.C.A. § 1151(a). In determining whether a Veteran has incurred a "qualifying additional disability," VA compares the Veteran's physical condition immediately prior to the beginning of the hospital care or medical treatment in which the claimed injury was sustained with his condition at the conclusion of such care or treatment. See 38 C.F.R. § 3.361(b). The additional disability must be both (1) actually caused by the hospital care or medical treatment received from VA and (2) proximately caused by VA's fault or an unforeseen event. See Viegas v. Shinseki, 705 F.3d 1374, 1377 (Fed. Cir. 2013); see also 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d). In determining whether the Veteran's disability was actually caused by VA hospital care or medical treatment, only a causal connection, and not direct causation, is required. Viegas, 705 F.3d at 1380; see also Brown v. Gardner, 513 U.S. 115, 119 (1994). However, a mere showing of additional disability following the receipt of VA care, treatment, or examination will not establish cause; the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1). 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 (2013). 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) (2013). Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is 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 (2013). 38 C.F.R. § 3.361(d)(2) (2013). With respect to "an event not reasonably foreseeable," the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Schertz v. Shinseki, --- Vet. App. ----, 2013 WL (Vet. App. September 26, 2013). In the decision, the Court acknowledged that Congress did not define or explain the phrase "not reasonably foreseeable" when the phrase was added to section 1151 with the other changes made in 1996. Schertz at 5. The Court stated that Congress did not give the Secretary "any explicit or implicit guidance to help it sift throughout competing interpretations." Id. In discussing the standard based on the "reasonable health care provider," the Court noted that: "merely because a treating physician, expert, or other health care provider actually foresaw certain risks does not mean that a reasonable health care provider with primary care for the patient would have disclosed these risks." For example, an extremely cautious treating physician may take the "kitchen sink approach," informing a patient of numerous risks, but such risks might still be considered "not reasonably foreseeable" under section 1151(a)(1)(B) and implementing regulation § 3.361(d)(2) if a reasonable health care provider primarily responsible for the patient would not have foreseen such risks or determined them subject to disclosure under § 17.32." The Court emphasized that actual foreseeability or possible foreseeability is not the standard and the determination rests on whether a reasonable health care provider seeking to obtain informed consent would have disclosed the risk as reasonably foreseeable. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran alleges that he incurred an additional disability as a result of a July 1996 surgery at the Palo Alto VA Medical Center. In a dated October 2008 statement, the Veteran stated that he was operated on for the removal of a bone spur on his left 5th metatarsal bone and during the operation, he saw that one of the doctors took out a small saw. He stated that no one explained the operation to him and that he had no idea they broke off the metatarsal bone from the foot bone that it was connected to. At first, he did not notice any pain; however, a couple of years later, he felt discomfort and noticed that his little toe was laying flat against his other toe. He believed that walking on his left foot without the support of the foot bone that was disconnected from the fifth metatarsal bone, causes a callus to form which becomes hard and painful to walk on. In a July 2009 statement, the Veteran explained that he was "minus my little toe bone and 5th metatarsal head on my left foot" during a minor operation to remove a bone spur at the Palo Alto VA Medical Center. He stated that he experienced pain when walking due to the metatarsal bone being depressed which causes a callus and pain when he walks on it. In a statement dated August 2012, the Veteran and his representative contended that the Veteran's foot condition was not foreseeable and the procedure was not explained to the Veteran prior to the operation nor after the operation. They asserted that the Veteran went in for a spur removal on his toe and the medical doctor and two interns "did an incorrect procedure." The Veteran also stated that he was no longer able to play golf or participate in other activities due to his foot disability. First, the Board recognizes that the Veteran has multiple disabilities that affect his feet. The medical evidence dated prior to the July 1996 surgery shows that the Veteran was treated for a left foot disability. In fact, the Veteran had surgery in 1994 which included an arthoplasty and an elevating fifth metatarsal osteotomy with K-wire fixation. The record at that time revealed diagnoses of Tailor's bunion, hammertoe of the fifth digit and the January 1996 record showed a diagnosis of a contracted fifth digit. The pertinent question in this case is whether the Veteran has an additional disability as a result of the July 1996 surgery at the Palo Alto VA Medical Center. With respect to whether the Veteran has an additional disability, the December 2011 VA examiner was asked to review the claims file, examine the Veteran, and identify the additional disability. The report shows that the additional disability was listed as: plantar callosities in relation to the second and third metatarsal heads and also some callosity in relation to the stump of the proximal fifth metatarsal causing symptoms. The Board assigns great probative value to the VA examiner's diagnosis of the additional disability from the July 1996 surgery. While the Veteran can provide statements regarding his symptoms, he is not competent to diagnose his additional disability from the July 1996 surgery as this is a complex medical question that requires medical expertise and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges that the Veteran submitted private medical records, which include diagnoses related to his feet (other than callosities). While the private physician listed diagnoses and noted the Veteran's prior surgery, the physician did not discuss what additional disability, if any, was caused by his July 1996 surgery. Therefore, the Board assigns more probative weight to the December 2011 VA examiner's opinion as the examiner had access to the claims file, examined the Veteran, and provided a specific diagnosis as to the additional disability incurred as a result of the July 1996 surgery. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). Historically, a January 1996 record noted that the Veteran's left toe was crooked and he complained of pain under the ball of his foot. He stated that he could not walk for exercise or play golf anymore. He knew the options-fusing toe to fourth toe or other procedures. A subsequent January 1996 VA treatment record shows that the Veteran had a painful left fifth toe and that his fifth toe was now overlying the 4th toe. Objectively, there was a dorsally contracted fifth toe, left at MPJ level. The x-ray revealed displaced head osteotomy, arthoplasty, dorsally contracted digit. The assessment was listed as contracted fifth digit, left. An April 1996 VA note shows that the Veteran complained of pain on the left fifth toe and the ball of his foot. He had a dorsally contracted left fifth digit that was not manually reducible. Again, it was indicated that the procedures were explained including synd. release and possible remodeling. A July 8, 1996 note indicated that the Veteran had symptomatic axostosis for two years. He had surgery two years ago and it did not heal and was deformed. On a July 16, 1996 VA note, the Veteran signed under the following statement: "I understand nature of the proposed procedure(s), attendant risks involved, and expected results, as described above, and hereby request such procedure(s) be performed." In the same note, the physician signed under the following statement: "I have counseled this patient as to the nature of the proposed procedure(s), attendant risks involved, and expected results, as described above." Another July 16, 1996 note indicated that the Veteran was status post (s/p) Tailor's bunion surgery resulting in malunion, dorsal contracture, plantar prominence, and painful callous. A July 17, 1996 note indicated a pre-operative diagnosis of "painful plantar prominence 5th metatarsal; dorsal contracture of 5th digit, left foot." The post-operative diagnosis was the same. The note indicated that the surgery was discussed, understood, and there was signed consent as to the risks and complications were explained. It was indicated that no guarantees were given or implied. Another July 17, 1996 post-op note showed that the Veteran was "feeling great" and icing and keeping his feet elevated. He had no podiatric complaints at that time. A July 21, 1996 post-operative note indicated that the Veteran had throbbing pain but it was tolerable. Subsequent VA treatment records show palliative foot care for the Veteran's feet. The September 2008 VA examiner indicated that the Veteran began to have problems with his little toe in 1991 and that he had an initial consult for history of injury to left small toe over ten years ago. In 1994, the Veteran underwent status post elevating fifth metatarsal osteotomy left foot with K wire fixation. There was an arthroplasty of the fifth proximal IP joint left foot with a preoperative diagnosis of Tailor's bunion and hammertoe fifth digit. On July 17, 1996, he underwent a left fifth to metatarsal head resection and fourth and fifth syndactylization with soft tissue revision. The examiner stated that despite the fact that there was no typed operative note from 1996, he was not "entirely clear" whether patient's surgery from 1996 caused the Veteran's disability as the Veteran had left foot issues from 10 years even prior to 1991. The examiner opined: "his current complaints of pain is less likely caused as not [. . .] as a result of surgery from 1996." However, as the September 2008 VA examiner's opinion is speculative, the opinion is inadequate. See Bloom v. West, 12 Vet. App. 185 (1999). An addendum to the September 2008 VA examination report was provided in December 2011. The claims file was available for review. The examiner listed relevant evidence in the claims file and indicated review of the September 2008 VA examination report. The examiner stated that the Veteran did not recall the surgery in 1994. Nevertheless, he did have surgery in 1996 and there was an excision of the fifth metatarsal head and part of the proximal phalanx and syndactylization of fourth and fifth with soft tissue revision. The Veteran stated that he saw a nurse practitioner to debride calluses that he has on both feet. On the left foot, he had it in relation to the remaining stump of the fifth metatarsal and also of the fourth and third metatarsals and sometimes second. On the right foot, he had debridement of the callosities on the plantar aspects of the second, third, fourth, and fifth metatarsals as well. The Veteran stated that his callosities on the fifth metatarsal plantar aspect were similar to the ones that he started off on the left foot with. He had been provided with cushioning for the plantar aspects of both feet and found that they gave him some relief of his pain during ambulation. On physical examination, the left foot had well healed scars. There was syndactyly of the fourth and fifth toes. The fifth toe was a little floppy. He had callosities on the plantar aspect of his third and fourth metatarsal heads and some in relation to his stump of the fifth metatarsal. There was discomfort and tenderness when pressed. Incidentally, he had some callosities on the right side in relation to the second, third, and fourth metatarsal heads and also the fifth. He had hammertoes on both feet with subluxation of the MP joint on both sides with ulnar drift of the toes more so on the left side than on the right. Diagnostic impression of the x-rays of the left foot was: "Plantar callosity, Taylor's bunion on left side, symptomatic, which was treated with elevation of the fifth metatarsal and subsequently excision of the fifth metatarsal head and syndactylization of the fourth and fifth toes. Subsequent to this, the weight has been transferred onto his third and fourth metatarsal heads. As a result of this, he had plantar callosities in relation to the second and third metatarsal heads and also some callosity in relation to the stump of the proximal fifth metatarsal causing symptoms." The examiner was asked to provide responses to the following questions: (1) Is it at least as likely as not that the Veteran's July 1996 left foot surgery at the Palo Alto VA Medical Center resulted in additional disability and, if so, what is the diagnosis of this additional disability. (2) Is it at least as likely as not that the additional disability caused by the Veteran's July 1996 left foot surgery was caused by carelessness, negligence, lack of proper skill, error in judgment or similar incidents of fault on the VA's part in furnishing the surgical treatment. (3) Is it at least as likely as not that additional disability caused by the Veteran's July 1996 left foot surgery was an event that was not reasonably foreseeable." The examiner opined: "It is at least as likely as not that the veteran's July 1996 left foot surgery resulted in additional disability and the diagnosis of the disability is set out above. However, this is an event that is reasonably foreseeable and is a known result when the fifth metatarsal head is excised. It was not caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on VA's part in furnishing the surgical treatment (emphasis added)." However, the examiner went on to state, in contradiction to the aforementioned opinion, "It is at least as likely as not that the additional disability caused by the Veteran's July 1996 left foot surgery was an event that was not reasonably foreseeable to the extent the Veteran has." In order to resolve the conflicting opinion, the RO requested review by an independent medical examiner. The independent medical examiner provided an opinion in July 2012. The examiner noted that the Veteran attributed his current left foot disability to the 7/17/1996 operation in which the fifth metatarsal head was resected, with remodeling of the fifth metatarsal shaft plantarly, and fourth and fifth digital syndactilization was performed. The Veteran, as a consequence of the procedures, develops a painful callosity on the bottom of his left foot. Efforts to trim the callus and provide shoes and inserts to pad the area have helped, but not eliminated the problem. The podiatrist surgeon documented the procedure planned and its discussion with the patient and "based upon my review, I therefore opine that there is no evidence in the claims file of negligent VA medical care as related to the surgery on the veteran's foot on 7/17/1996. I would finally opine that the Veteran's foot condition was reasonably foreseeable." The examiner's rationale for the opinion was the podiatry note dated 4/15/1996 which stated that the patient was examined, the above findings were explained (dorsally contracted left fifth digit which isn't manually reducible) and the x-rays were reviewed with treatment alternatives. The potential surgical procedures were explained: syndactyly of left fourth to fifth with soft tissue release fifth metatarsal phalange with possible osseous remodeling of left fifth metatarsal. The Veteran acknowledged understanding of the above and requested surgery for 7/17/1996 at Palo Alto. A pre-operative visit dated July 8, 1996 showed that the procedure involved "remodeling of the 5th metatarsal shaft plantarly." The examiner stated that it was precisely this metatarsal shaft end that was remodeled toward the plantar surface that caused the pressure that produces the callus for the Veteran. In deciding the claim at hand, the Board must assess the credibility and weight of all the evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is entirely within the Board's province to give more probative weight to certain pieces of evidence than others, so long as the Board provides the required reasons or bases. See Schoolman v. West, 12 Vet. App. 307, 310-311 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the claimant, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). Here, the Board assigns great probative weight to the independent medical examiner's opinion and that of the December 2011 VA examiner's opinion with respect to whether the Veteran's additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar incidents of fault on the VA's part in furnishing the surgical treatment. The December 2011 VA examiner noted that the Veteran had an additional disability as a result of the July 1996 surgery. However, the examiner explained that the additional disability was a "known result" when the fifth metatarsal head was excised. The examiner's opinion is supported by the independent medical examiner's opinion. The independent medical examiner stated that there was "no evidence of negligent care" on the part of VA. Specifically, the examiner noted that the procedures, risks, and alternatives were discussed with the Veteran prior to surgery. With respect to whether the additional disability was an event not reasonably foreseeable, the Board assigns great probative weight to that of the independent medical examiner's opinion. As explained previously, the standard is not actual foreseeability or possible foreseeability, but, rather whether a reasonable health care provider would have disclosed the risk. See Schertz, --- Vet. App. ----, 2013 WL (Vet. App. September 26, 2013). In this case, the Board finds that the examiner's opinion that the risk was reasonably foreseeable is in accord with the standard as to whether a reasonable health care provider would have disclosed the risk. The examiner noted that the procedure and risks were explained to the Veteran prior to his surgery and specifically explained that the event was reasonably foreseeable because the July 1996 procedure involved remodeling of the 5th metatarsal shaft plantarly. The examiner commented that it was "precisely this metatarsal shaft end" that was remodeled toward the plantar surface which was causing the callus for the Veteran (emphasis added). The examiner's opinion is considered to be of significant probative weight as it was definitive, based upon a review of the Veteran's claims file, and supported by rationale as to why the event was reasonably foreseeable. See Prejean v. West, 13 Vet. App. 444 (2000). As held by the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). Thus, the Board finds that the Veteran's additional disability was reasonably foreseeable. In light of the most probative evidence outlined above, the Board finds that compensation under 38 U.S.C.A. § 1151 is not warranted. The Board recognizes the Veteran's statements and that of his representative that he did not give informed consent for the procedure and the wrong procedure was conducted. However, as delineated in detail above, the Veteran signed a consent form and the VA physician indicated that the risks, the procedure, and alternatives were reviewed with the Veteran prior to the July 1996 surgery. In addition, the independent medical examiner noted that review of the evidence showed that the procedures, risks, and alternatives were discussed with the Veteran prior to surgery. Therefore, the Board finds that the Veteran's statements regarding consent for the performed procedures are entitled to little probative weight as the documentary evidence included a signed consent form for the July 1996 surgery and the VA physician indicated that the procedure and risks were reviewed with the Veteran. The Board assigns greater probative weight to the medical evidence to include the signed consent form and the accompanying VA notes and the aforementioned opinion. Therefore, the most probative evidence shows that the Veteran gave informed consent for the July 1996 surgery. See 38 C.F.R. § 17.32 (2013). In addition, the Veteran presented several statements attesting to the additional disability that he experienced and his belief that his disability is a result of negligent VA care. While the Veteran is competent to attest to his symptoms-experiencing pain and developing calluses on his feet, he is not considered competent to provide an opinion as to what, if any, additional disability he has as a result of the July 1996 surgery or whether the disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel, or that it was due to an event not reasonably foreseeable. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran does not have the requisite knowledge or expertise to resolve the complex questions in this case. Based on the most probative nexus evidence of record, recounted above, the criteria for entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for additional disability due to July 1996 left foot surgery at the Palo Alto VA Medical Center, are not met. As the preponderance of the evidence is against the claim, there is no doubt to be resolved and the claim is denied. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for additional disability due to July 1996 left foot surgery at the Palo Alto VA Medical Center, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs