Citation Nr: 1820187 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 14-24 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for left shoulder disability based upon July 1977 VA surgical treatment. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty from March 1967 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In June 2017, the Veteran testified at a videoconference Board hearing before the undersigned; a transcript is included in the record. The Board notes that on the day or the videoconference hearing, the Veteran submitted a signed written statement that waived initial RO consideration of evidence added into the file on that date. 38 C.F.R. § 20.1304. FINDING OF FACT The Veteran's July 1977 VA left shoulder surgery repaired/stabilized the Veteran's painful recurrent left shoulder dislocations as intended, while foreseeably somewhat accelerating the progress of the left shoulder's degenerative joint disease; it did not involve any instance of fault on the part of VA nor any failure to obtain informed consent that resulted in any new or additional left shoulder disability. CONCLUSION OF LAW Compensation under 38 C.F.R. § 1151 for left shoulder disability is not warranted. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis The Veteran contends, including as explained at his June 2017 Board hearing, that he has additional left shoulder disability due to allegedly improperly excessive tightening of the muscles around the joint during a July 1977 VA surgery to repair/stabilize the left shoulder to treat a pattern of recurrent dislocations. The Veteran does not dispute that the 1977 surgery was effective in stabilizing his left shoulder with regard to ending his pattern of recurrent painful dislocations, but he alleges that the surgery caused the joint to be overtightened such that he believes that it caused the development of arthritis leading to his left shoulder joint replacement in 2002. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused (A) by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program or (B) by participation in a compensated work therapy program. 38 U.S.C. § 1151. 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. 38 C.F.R. § 3.361(d)(1). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361 (d). For the purpose of evaluating lay evidence, to include a veteran's statements about his medical history, competent evidence is "limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is "not competent to opine as to medical etiology or render medical opinions." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In considering the Veteran's claim, the Board must first determine whether any new or additional disability is shown. In determining whether a veteran has an additional disability, the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to the veteran's condition after such care, treatment, examination, service, or program has stopped. 38 C.F.R. § 3.361(b). Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence reasonably supports finding that some degree of additional (or accelerated) left shoulder disability was a consequence of the pertinent VA medical treatment featuring left shoulder surgery in 1977. A December 2013 letter from one of the Veteran's treating doctors, Dr. Hull, discusses that the Veteran underwent a shoulder replacement surgery in 2002 "done for osteoarthritis that developed in his shoulder secondary to damage that was in his shoulder." Dr. Hull opines that the osteoarthritis "occurred secondary to his dislocations as well as, in my opinion, the surgery that was done to fix his dislocations," and that "[a]ll of these contributed to his development of loss of cartilage on the articular surface and probably most likely his surgery had a large part to do with this due to the use of the surgical procedure that was done for him." Dr. Hull goes on to discuss that "it is quite plausible and quite likely that a lot of his shoulder damage occurred due to the surgery that he had done for it to try to stabilize his shoulder." Notably, Dr. Hull states: "This is not uncommon in the orthopedic community that a Bankart procedure or other type of tightening procedure that is done can cause an acceleration of damage to the shoulder, eventually ending up with a joint replacement." A June 2013 VA medical opinion addressing this matter notes review of the claims-file with attention to the Veteran's 1977 left shoulder surgery and his eventual development of osteoarthritis resulting in the 2002 left shoulder joint replacement surgery. The VA physician's June 2013 opinion notes that the documentation of the 2002 joint replacement surgery shows that the Veteran "was identified to have osteoarthritis with difficulty [with] abduction ...." The VA physician opines: "This decrease in range of motion is not a reflection of claimed 'over tightening' but a progression of diseased shoulder leading to a state of osteoarthritis." The June 2013 VA medical opinion describes the deterioration of the Veteran left shoulder as "a progression" of the shoulder disease over the years following the 1977 VA surgery, and the December 2013 private medical opinion describes the deterioration as having been "accelerated" by the 1977 VA surgery that addressed the Veteran's problems with recurrent dislocations. Reading the opinions together in a manner most reasonably supportive of the Veteran's claim, the Board finds that the Veteran's left shoulder disability naturally progressed into development of osteoarthritis over the years, but that this progression was accelerated by the occurrence of the 1977 VA surgery to tighten the joint. However, to establish entitlement to compensation under 38 U.S.C. § 1151, it is not sufficient to merely show that the Veteran received VA care and that the Veteran has an additional disability therefrom. 38 C.F.R. § 3.361(c)(1). The evidence must also establish that the proximate cause of the Veteran's additional disability was either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination or that it was an event not reasonably foreseeable. 38 C.F.R. § 3.361(d). In this case, there is no competent medical evidence suggesting any manner of failure on the part of VA to exercise the degree of care that would be expected of a reasonable health care provider. There is no competent medical evidence identifying or suggesting carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the furnishing of the pertinent treatment. The December 2013 letter from Dr. Hull does not suggest any such instance of fault on the part of VA. The June 2013 VA medical opinion explains that the 1977 VA surgery "was a relative success," as it "was meant to prevent recurrent dislocation." The June 2013 VA medical opinion discusses that "[t]he natural progression took its course to a state of osteoarthritis. This required surgery in 2002." The June 2013 VA medical opinion concludes: "Thus there was no 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 on veteran's left shoulder condition from the VA in 1977." Medical records contemporaneous to the time of and around the July 1977 surgery contain no suggestion of any instance of fault. There is otherwise no indication in any competent medical evidence of record of any instance of fault in VA's provision of medical care in connection with the 1977 surgery. The Board has considered that compensation may be warranted if the evidence shows that VA furnished the pertinent hospital care or medical or surgical treatment without a veteran's informed consent. In this case, the evidence does not establish that the pertinent VA medical care was provided without informed consent. The documentation of record includes a July 1977 form signed by the Veteran, a witness, and a counseling physician certifying that the Veteran was informed of the purpose, alternatives, risks, and the possibility of complications associated with the "Magnuson repair, left shoulder." (The Board notes that this is a separate document from the January 1977 form certifying informed consent regarding a closed reduction of the dislocated left shoulder at that time.) At the June 2017 Board hearing, discussion of the informed consent element of this issue led to the Veteran remarking: "I have no arthritis in any other joint and so if they're saying that because I had the surgery, it's natural for it to have arthritis developed at that point, I don't know that that was ever shared with me." The Veteran notes that his memory is not entirely clear regarding the pertinent events of 1977 as "this was a long time ago," and the Veteran does not assert that he recalls not being informed of the risks of the surgery. In any event, the Board understands the Veteran's remark to express that he is not certain that he was informed in 1977 that the pertinent left shoulder surgery may cause him to have arthritis in the joint. In this regard, to avoid misunderstanding and to help clarify some of the complexity in the Veteran's claim, the Board wishes to emphasize to the Veteran that the evidence in this case does not indicate that his left shoulder arthritis was caused by the 1977 surgery. Rather, the evidence in this case suggests at most that the 1977 surgery somewhat accelerated the degeneration of his left shoulder, as a side-effect of stabilizing the recurrent dislocations of the already-diseased joint. Accordingly, although the Veteran discussed retrospectively weighing the cost of incurring left shoulder arthritis versus the benefit of repairing/stabilizing his left shoulder to stop recurrent painful dislocations in 1977, the evidence in this case does not indicate that this was the risk-reward dilemma of his medical care in 1977. The foreseeable and realized risk of the 1977 surgical stabilization of his left shoulder dislocations is indicated to have merely been some degree of acceleration of the development of arthritis from the long-term process of joint degeneration that was already underway in the diseased joint. With the above in mind, the Board has considered whether the 1977 VA surgery was conducted with adequate informed consent from the Veteran regarding the foreseeable risks of the procedure. The Board notes that the signed January 1977 form certifying the Veteran's informed consent at that time does not expressly document a list specifying each foreseeable risk of the procedure. Even if the informed consent form is VHA's standard for a certain procedure, it still must be established that the form reflects what would be disclosed by the "reasonable health care provider" primarily responsible for the patient in a given case, which may vary depending on the patient's physical condition, age, or other individual factors. Schertz v. Shinseki, 26 Vet. App. 362 (2013). Under 38 U.S.C. § 1151, the presumption of regularity may not be invoked in determining whether a physician has fully informed a Veteran about a particular consequence of a particular medical procedure where the only evidence is a generic consent form that was filled out properly. However, even a physician's failure to advise a veteran of a foreseeable risk may be considered "a minor, immaterial deviation" if it is determined that "a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." McNair v. Shinseki, 25 Vet. App. 98 (2011). In this case, the evidence establishes that the acceleration of the Veteran's degenerative left shoulder disability was a foreseeable risk of the joint repair/stabilization surgery performed to stop the recurrent left shoulder dislocations. The December 2013 letter from the Veteran's physician Dr. Hull explains that it is "not uncommon" for the type of surgery the Veteran underwent at VA in 1977 to "cause an acceleration of damage to the shoulder, eventually ending up with a joint replacement." Notably, the Veteran has not asserted that he (or any standard of reasonable person) would have foregone the stabilization of his unstable / recurrently dislocated left shoulder in 1977 in order to avoid the foreseeable risk of somewhat accelerating the progression of the left shoulder joint degeneration. During his June 2017 Board hearing, the Veteran testified: "... when I decided to have the initial surgery in 1977 .... they told me at that time, hey you either get used to it dislocating ... you get used to that or you have the surgery to have it corrected.... [C]ertainly considering the pain of a dislocated joint, there was in my mind, no choice but to go ahead and have it fixed." This discussion during the Board hearing was presented in the express context of considering the question of informed consent in this case, and the Veteran described that the choice to have the surgery to repair/stabilize the highly painful recurrent dislocations was a clear one for him ("no choice but to go ahead and have it fixed"). The Board notes that the medical records from around the time of the Veteran's 1977 left shoulder surgery describe that the Veteran was experiencing significant disruption not only from the actual dislocations of the left shoulder, but also the anxiety and guarding associated with his recognition that that shoulder would dislocate again if he made otherwise routine motions with the joint. One report, apparently from July 1977, notes that the Veteran reported a history of five or six episodes of "outright dislocation" following a remote past football injury, with additionally "many episodes where the shoulder partially went out and he had to pull on it, or twist it in order to get it back. The shoulder constantly feels unstable." The report notes that the Veteran "always feels that if he would bring his arm up into the overhead position forcefully that it would dislocate and he has been very careful in the use of his arm so as not to strain it. He feels that if he leans over forward and lets the arm hang relaxed that it would go out of place." During the June 2017 Board hearing, when considering the matter further in the context of the informed consent element of the claim on appeal, the Veteran did not conclude that he would have foregone the surgical stabilization of his left shoulder to avoid the long-term development of arthritis in the joint. The Veteran considered the matter and said "... I don't know. That was, like I say, a long time ago. Those were the choices that were made at that time." Notably, the Veteran said "I don't know" with regard to whether he might have reconsidered his consent to the treatment "knowing that, you know, several years later it was going to deteriorate to a point that it had to be replaced ...." It is significant to again note that the competent medical evidence in this case does not indicate that the 1977 surgery caused his shoulder to degenerate the point of requiring replacement; rather, the evidence indicates that the 1977 surgery may be considered to have accelerated the progression of the left shoulder's existing degenerative disease. In his testimony, the Veteran appears to decline to assert that he would have foregone the surgical treatment in 1977 if he had believed that a consequence of the surgery would be degeneration and joint replacement "several years later." The fact that the surgery is medically indicated to have merely accelerated the existing degenerative process of the shoulder, with joint replacement coming approximately 25 years later, only further diminishes any suggestion in this case that a reasonable person (or the Veteran in particular) would have foregone the treatment in light of the foreseeable risk of somewhat accelerating the existing degenerative disease of the joint. The Board again notes that the competent medical evidence in this case indicates that orthopedic specialists commonly encounter cases of acceleration of degenerative disease of a shoulder (specifically including acceleration of progression to needing joint replacement) as a consequence of the type of stabilization surgery the Veteran received at VA in 1977; this further suggests that reasonable people elect to receive the surgery to stabilize recurrently dislocated shoulders notwithstanding this foreseeable risk. Neither the Veteran's own assertions / testimony nor any other evidence of record in this case significantly contradicts this indication. Based upon the evidence of record in this case, the Board finds that a reasonable person would elect to undergo the surgical treatment of a highly painful recurrently dislocated shoulder despite the risk that degeneration of the joint may be accelerated to the point of leading to joint replacement surgery many years later (approximately 25 years later in the Veteran's case). Again, the Board notes that the Veteran expressed some uncertainty, but ultimately did not argue to the contrary and also declined to specifically assert that he himself would have foregone the 1977 surgical treatment in light of any further consideration of the risks. In light of the above, the Board finds that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider. The Board also finds that VA did not fail to obtain the Veteran's informed consent beyond potentially a minor, immaterial deviation that would not have changed the decision of a reasonable person to proceed with the treatment. The Board understands the Veteran's testimony and contentions describing that his painful left shoulder dislocations led to the 1977 VA surgery to tighten the joint, which in turn was followed by him experiencing progressive difficulties with tightness in the shoulder and eventual progression of degenerative disease leading to joint replacement surgery in 2002. The Board sympathizes with the Veteran concerning his history of chronic left shoulder impairment. However, the competent evidence of record indicates that the 1977 VA surgery was essentially successful in treating the Veteran's prior recurrent painful dislocations, and that the degenerative disease of the joint was merely foreseeably accelerated (not caused) by the surgical treatment of the Veteran's already diseased left shoulder. The evidence does not show an instance of fault on the part of VA in providing the 1977 medical treatment nor does the evidence show that the Veteran was subjected to unreasonable risk without properly informed consent. For the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that entitlement to compensation pursuant to 38 U.S.C. § 1151 is warranted for left shoulder disability in this case. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's appeal is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). [CONTINUED ON NEXT PAGE] ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left shoulder disability is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs