Citation Nr: 18156005 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-06 886A DATE: December 6, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for an additional left foot/knee disability, claimed as based on a total left knee replacement performed at a VA facility on February 10, 2009, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran incurred additional left foot/knee disability as a result of a surgical procedure performed at a VA facility that was not reasonably foreseeable by medical personnel. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for an additional left foot/knee disability have been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from December 1960 to September 1981. The Veteran maintains that he acquired an additional left knee/foot disability due to a left knee total knee arthroplasty (TKA) performed at a VA hospital on February 10, 2009, and that, because of this additional disability, he is entitled to compensation under the provisions of 38 U.S.C. § 1151. In order to establish entitlement to compensation under 38 U.S.C. § 1151, there must be (1) evidence of additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, and (2) a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. The Board finds that the first element, evidence of an additional disability due to VA surgical treatment, has been met. VA examinations and treatment records reflect persistent knee pain and knee limitation of motion that the Veteran has experienced since the TKA. In the September 2018 Outside Medical Examiner’s opinion, the examiner indicates that these additional disabilities may have been caused by the TKA. He reasoned that outcomes such as that occur with some frequency following TKA. He then cited two supportive medical studies. Regarding the second element, the Board observes that there is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Consent was appropriately obtained and consent forms were properly executed in accordance with the standards of care required. In the aforementioned medical opinion, the examiner found that the degree of care delivered by VA during this procedure appeared to be in line with that which would be expected by any reasonable healthcare provider performing a TKA. However, he noted that, although the additional disability of persistent knee pain and limitation of motion would be foreseeable now, the studies revealing this information were published after the 2009 surgery. Thus, at the time of the Veteran’s TKA, these additional disabilities may not have been foreseeable to the surgical team. The Board observes that there is a negative VA opinion of record. The examiner reasoned that there was no medical fact identified/documented to support the Veteran’s claim as no injuries were documented to have onset with the surgery. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, his knowledge and skill in analyzing the data, and his medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In the case at hand, both examiners reviewed the claims file prior to rendering opinions. The authors of both opinions are qualified through education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the Board finds it particularly pertinent that the author of the supportive opinion is an orthopedic surgeon with specific expertise in this type of disability. The examiner also provided a detailed discussion of the pertinent evidence of record and supported his opinion with citations to supportive medical treatises and with an explanation of the expected outcomes of the Veteran’s TKA. For these reasons, the Board finds this specific medical opinion the most probative evidence for the claim. Based on the above, the Board finds that the evidence supports the proposition that the Veteran is entitled to benefits under 38 U.S.C. § 1151 for an additional left knee/foot disability. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush