Citation Nr: A19001563 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190822-24041 DATE: September 26, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of left knee injection is denied. FINDINGS OF FACT 1. The Veteran underwent a left knee intra-articular injection of standard preparation of 40 mg Depomedrol and 2 cc 2% lidocaine in March 2015 at a VA facility. 2. The morning following the injection, the Veteran went to the emergency room complaining of falling and numbness in bilateral arms. While receiving inpatient care at a VA facility, the Veteran suffered two falls. 3. The Veteran has a history of multiple falls and strokes in the past. 4. The Veteran’s two falls at the VA facility and stroke were not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of the VA. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for residuals of left knee injection have not been met. 38 U.S.C. § §§ 1151, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to January 1961. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Louisville, KY. The Veteran timely appealed this rating decision to the Board and requested Direct Review of the evidence considered by the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2015). 38 U.S.C. § § 7107 (a)(2) (2012). Entitlement to compensation under 38 U.S.C. § 1151 for residuals of left knee injection In April 2019, the Veteran filed a claim for benefits under 38 U.S.C. § 1151 for two falls that occurred at a VA facility in March 2015 as well as stroke. See June 2015 application for disability compensation. The Veteran’s wife and fiduciary states that, after receiving a shot in his left knee, the Veteran started falling and couldn’t walk. The Veteran’s wife took him back to the hospital and he was admitted. While receiving inpatient care, the Veteran fell out of bed, hitting his head, with a sitter in the room. The Veteran fell a second time, with no sitter, landing on his right side and arm, which swelled up. X-rays revealed no broken bones. The Veteran underwent a magnetic resonance imaging (MRI), revealing an acute stroke. The Veteran’s wife contends that the left knee injection caused the Veteran’s stroke and resulting falls. Id. A veteran may be awarded compensation for an additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701 (3)(A), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361 (c), (d)(1), (d)(2). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently recognized that a claimant may succeed under a referral theory pursuant to 38 U.S.C. § 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of § 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151 (a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that the VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Federal Circuit further held that § 1151(a)(1)(B) requires that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. To determine whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran’s condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361 (b). VA considers each involved body part or system separately. Id. If an additional disability is shown, actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that a veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. The event does not have to be “completely unforeseeable or unimaginable” but it 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)(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. See 38 C.F.R. § 3.361 (d)(1)(ii). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic procedure or course of treatment. 38 C.F.R. § 17.32 (c). The informed consent must be appropriately documented in the health record and a signature is required for all treatments and procedures that require the use of sedation, anesthesia, or narcotic analgesia, that are considered to produce significant discomfort to the patient, or that require injections of any substance into a space of body cavity. 38 C.F.R. § 17.32 (d)(1). VA treatment records show that the Veteran presented at VA medical center for treatment for his left knee disability in March 2015. During his appointment, the Veteran received an intra-articular injection with a standard preparation of 40 mg of Depomedrol and 2 cc 2% of lidocaine to his left knee. See July 2019 VA medical opinion. In the early hours of the next morning, the Veteran went to the Mountain Home VAMC emergency room, his wife complaining that the Veteran had been falling and had numbness in his arms. It was noted that the Veteran has dementia and could not articulate his symptoms. A computed tomography (CT) scan was done and no acute changes were noted but previous stroke injuries were documented and the Veteran was admitted to inpatient care for further evaluation. The Veteran fell from his bed a few days after being admitted, despite having a sitter at his bedside. The sitter reported the Veteran becoming agitated and wanting to see his wife. The Veteran climbed out of bed and the sitter attempted to restrain him. The sitter was then pushed falling back on a sofa and the Veteran fell on the floor, hitting his left temple on the wall. The Veteran fell a second time after his chair alarm was disconnected. The chair was disconnected after the Veteran’s wife accidentally activated the alarm while feeding him. She was instructed to tell a nurse if she left the patient’s bedside, so the alarm could be reactivated. When she left, she notified a different nurse that she was leaving but the nurse was not aware that the chair alarm was disconnected. The new nurse was outside the Veteran’s room when he fell and found him prone on the floor. The Veteran reported his right arm hurt but was unable to identify where. The Veteran’s right wrist was reported as swollen. A medical expert opinion was obtained in July 2019 to address the question of whether, due to VA care, the Veteran had sustained additional disability due to 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 due to an event not reasonably foreseeable. 38 C.F.R. § 3.361 (a) (2018). The VA examiner noted that the Veteran received a standard preparation left knee injection and that he suffered two falls in a VA medical facility in the days following. The VA examiner determined the Veteran’s claimed disability of residuals of falls, to include stroke, was not caused by or became worse as a result of the VA treatment. According to the VA examiner, it was an unfortunate coincidence that the Veteran received a left knee joint injection and suffered a stroke the same calendar day, but there is no other compelling relationship between the two events. Furthermore, there was no clinical indication that the Veteran may suffer an imminent stroke at his knee treatment appointment and after arriving at the emergency room, he was taken directly to head CT per the facility’s stroke protocol. The Veteran’s subsequent management was appropriate and reasonable, particularly given his intermittent combativity during his inpatient stay that forced medical staff to sometimes care for him in less than ideal circumstances (e.g. as he refused to wear hip protection as a “high-risk fall” status patient). See July 2019 medical opinion. After a review of all the evidence under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for claimed residuals of left knee injection, to include falls and stroke. The Board notes that the Veteran is not competent to provide an opinion as to whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault or whether any such failure to meet the standard of care resulted in short bowel syndrome. Any such opinion would require detailed knowledge, training, and/or experience. See, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple disability such as a broken leg, but not competent to provide evidence as to more complex medical questions). In expressing an opinion as to cause and negligence, the Veteran is not reporting readily apparent symptoms (rather he is providing lay opinion on the cause of observable symptoms), nor is he reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional. See, Jandreau, 492 F.3d at 1377. Likewise, the Board is not competent, under the facts of this case, to determine the medical standard of care without reference to the opinion of competent medical professional. See, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding the Board may not make medical determinations). Whether the Veteran’s VA medical professionals met the standard of care is a question that requires competent medical evidence to resolve. The Board concludes that the July 2019 opinion from the VA examiner is probative and persuasive on the issue of whether the Veteran’s falls and stroke were the result of negligence or substandard care. The VA examiner provided a negative opinion and provided a reasoned rationale for his conclusion. In light of the above, the Board finds that the competent medical evidence of record is against the Veteran’s claim and that the Veteran did not incur additional disability following his treatment at the VAMC in March 2015 that was not reasonably foreseeable and/or that it was the result of a sub-standard of care nor was his falls or stroke caused by or became worse as a result of the VA treatment as issue. As such, the benefit of the doubt rule is therefore not applicable. See, 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.