Citation Nr: 1343310 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-39 596 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for additional left knee disability as the result of treatment by VA beginning on July 9, 2007 and subsequent thereto. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the RO. In April 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the claims file. In September 2011 and March 2013, the Board remanded the case for additional development of the record. Some of the requested development has been completed, and the case has been returned to the Board. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran is shown to have additional left knee disability manifested by limited motion that is due to an event that was not a reasonably foreseeable outcome of his VA medical treatment including surgery for replacement of joint on that side. CONCLUSION OF LAW The criteria for the award of compensation for additional left knee disability manifested by limited motion as the result of treatment provided by VA in July 2007 and thereafter pursuant to the provisions of 38 U.S.C.A.§ 1151 are met. 38 U.S.C.A.§§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). To the extent that the action taken hereinbelow is favorable to the Veteran, the Board finds that further discussion of VCAA is not required at this time. Laws and Regulations 38 U.S.C.A. § 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in death or additional disability by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the death or additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or the proximate cause of death or additional disability was an event which was not reasonably foreseeable, compensation shall be awarded in the same manner as if such death or disability were service connected. The requirement to show that the proximate cause of the veteran's death or additional disability was fault on VA's part or an event which was not reasonably foreseeable was added by amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 and applies to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. As the appellant filed his claim well after October 1, 1997, the amendments to the law apply to this case. To establish causation, the evidence must show that VA hospital care or medical or surgical treatment resulted in the veteran's death or additional disability. Merely showing that a veteran received care or treatment and that he died or has an additional disability does not establish cause. 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 or medical or surgical treatment proximately caused a veteran's death or additional disability, it must be shown that the VA hospital care or medical or surgical treatment caused the veteran's death or additional disability; 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. 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 during VA treatment 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran asserts that the VA "botched up the treatment and failed to perform physical manipulation soon enough after the surgery resulting in the [left] knee not healing properly and limiting its function." In this case, the Veteran underwent total knee arthroplasty (TKA) at VA in July 2007 due to his left knee arthritis. In December 2007, he underwent manipulation of left TKA under anesthesia because of limited range of motion of the left knee status post left TKA. In January 2008, the Veteran then underwent a diagnostic arthroscopy and manipulation under anesthesia for his left knee. The subsequent records indicate that these surgical procedures were unsuccessful in increasing range of motion of the Veteran's left knee. An April 2012 report of VA examination recorded a diagnosis of degenerative joint disease of the knee. The examiner documented that the Veteran underwent left total knee joint replacement in July 2007 with the residuals of intermediate degree of residual weakness, pain, balance and gait disturbance and limitation of motion. The VA examiner opined that the claimed condition was at least as likely as not proximately due to or the result of the service-connected condition. The examiner explained that the Veteran underwent TKA in July 2007 and subsequently developed post operative infection requiring readmission and IV antibiotics. It was determined that the best course of action would be removal of the new hardware and replace it. There was noted to have been a delay in beginning physical therapy, and the Veteran's left knee was immobilized for approximately 2-3 weeks. He was noted to have begun physical therapy in October 2007 and completed the prescribed course but still did not have full range of motion of the left knee. He underwent manipulation under anesthesia without resolution of the issue. In January 2008, the Veteran was noted to have undergone an arthroscopic debridement and manipulation under anesthesia and another course of physical therapy in an attempt to regain full range of motion. However, he was unable to flex his knee beyond 90 degrees. This limited his ability to bend, stoop, crawl, climb and carry heavy loads. The Veteran was reduced to completing sedentary seated administrative activities. He was noted to have formerly been a ski instructor prior to surgery, but could no longer do that and had not skied since the surgery. The VA examiner concluded that "based on the review of the records, and as a result of today's examination, this disability was not directly caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA's part in furnishing surgical treatment and that the resultant disability was an event not reasonably foreseeable." Additionally, the examiner stated further that "his surgical recovery was complicated by an episode of post operative infection resulting in both the need to replace the new knee hardware and the resultant colitis from antibiotic therapy. There was also noted to have been a delay in beginning the prescribed course of physical therapy and a prolonged period of immobilization which could have contributed to his inability to fully flex his knee despite manipulations and persistent physical therapy." Given its review of the record, the Board finds that the claim for compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for additional left knee disability manifested by limited motion as the result of treatment provided by VA on July 9, 2007 and subsequent to the performance of an arthroplasty is warranted. In the April 2012 report of VA examination, the Board notes that, while the examiner concluded that the additional left knee disability was not directly caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA's part in furnishing surgical treatment, the examiner did conclude that "the resultant disability also was an event not reasonably foreseeable." The examiner explained that the Veteran's surgical recovery was complicated by an episode of post operative infection resulting in both the need to replace the new knee hardware and the resultant colitis from antibiotic therapy. Additionally, there was also a delay in beginning the prescribed course of physical therapy and a prolonged period of immobilization which could have contributed to his inability to fully flex his knee despite manipulations and persistent physical therapy. The Board notes that this opinion was based on a thorough review of the medical records, including the Veteran's history, and sound medical principles. Thus, the Board concludes that the Veteran's additional left knee disability manifested by a limitation of motion was due to an event that was not reasonably foreseeable by the VA health care providers (i.e., the Veteran's additional left knee disability was not an ordinary risk of the left TKA and post-operative care). Accordingly, compensation for the Veteran's additional left knee disability pursuant to the provisions of 38 U.S.C.A. § 1151 is warranted. ORDER Compensation for the additional left knee disability manifested by limited motion as the result of treatment provided by VA on July 9, 2007 and thereafter pursuant to the provisions of 38 U.S.C.A. § 1151 is granted. _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs