Citation Nr: 20022555 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-56 686 DATE: April 1, 2020 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 (2012) for an additional right knee disability due to surgery performed on a right knee meniscus tear in Phoenix, Arizona, by the Department of Veteran Affairs (VA) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1975 to May 1978 and from November 1979 to July 1992. In October 2019, the Veteran provided testimony in a Board video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 (2012) for an additional right knee disability due to surgery performed on a right knee meniscus tear in Phoenix, Arizona, by the Department of Veteran Affairs (VA) is remanded. The issue before the Board is entitlement to compensation under 38 C.F.R. § 1151 for an additional right knee disability due surgery performed on a right knee meniscus tear in Phoenix, Arizona, by VA in May 2014. For background purposes, on May 1, 2014, the Veteran underwent a right knee arthroscopy and debridement for right knee pain at the VA Medical Center (VAMC) in Phoenix, Arizona. The Veteran reported that a week after this first procedure, he had “real sharp pains” in the medial inner side of the right knee which would “go across the knee and down to [his] ankle and up to [his] hip, and a throbbing pain in the same locations.” He stated that he went to the Phoenix VA and a magnetic resonance imaging (MRI) showed a tear of the medial collateral ligament. The Veteran indicated that he had been in bed since the surgery and VA told him to “give it a year,” and that he was still receiving treatment of cortisone shots and physical therapy. He stated that after a year he went to stay with his daughter in Anaheim and asked the Long Beach VA if an exploratory could be performed to see why he was still feeling pain. See October 2019 hearing transcript. On August 4, 2015, a subsequent right knee diagnostic arthroscopy and debridement and removal of plica was performed at the VAMC in Long Beach, California. The Veteran testified that the doctor at the Long Beach VAMC told him that while he was performing the surgery, he found a large track of cartilage that had been removed from the femur of the knee and that there should have been no reason for to have been removed. He stated that the doctor was “really upset” and said that the Phoenix doctor (Dr. Cranford) “doesn’t know what he’s doing. He shouldn’t be allowed to practice….” Id. Under the provisions of 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability, which is not the result of a veteran’s own willful misconduct or failure to follow instructions, disability compensation may be awarded for a “qualifying additional disability” in the same manner as if the additional disability was service connected. See 38 C.F.R. § 3.361. If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C. § 1151. First, the additional disability may qualify for compensation if the disability is not the result of a veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) 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 (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(a). To determine whether an additional disability was caused by medical treatment, VA compares a veteran’s condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care, treatment, or examination, and that a veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a veteran’s additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran’s informed consent. To determine whether there was informed consent, VA will consider whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32. “Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient...of the proposed diagnostic or therapeutic procedure or course of treatment.” 38 C.F.R. § 17.32(c). The practitioner must explain to the patient, in a language understandable to the patient: the nature of the proposed treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. Id. 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. 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. 38 C.F.R. § 3.361(d). 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. Id. Regulations further provide that compensation is not payable for the necessary consequences of VA treatment properly administered with the express or implied consent of a veteran or, in appropriate cases, a veteran’s representative. “Necessary consequences” are those which are certain or intended to result from the treatment provided. Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would, in fact, be administered. 38 C.F.R. § 3.361. The Board finds that remand is warranted to fully assist the Veteran with the development of his claim. Specially, the Veteran indicated in his November 2016 substantive appeal (VA Form 9) that he applied for Social Security Disability Insurance (SSDI) regarding the right knee injury, which was approved after appearing before an SSDI hearing. The record does not show that VA has attempted to obtain the Social Security Administration (SSA) records. Thus, an effort must be made to locate and associate any relevant SSA records with the Veteran’s claims file. Further, as mentioned above, the Veteran testified during the October 2019 Board video conference hearing that the doctor who performed the subsequent surgery at the Long Beach VA told him that there should have been no reason for the cartilage to have been removed from the femur. The Veteran testified that he went back to the Loma Linda VA to get a copy of the report because one of the doctors at Loma Linda read to him what he wrote in his report about how he was really dissatisfied with what Dr. Cranford had done. However, the Veteran indicated that when he went to obtain the report from Loma Linda, it was no longer in the records. VA medical records including in September 2017, November 2017, and June 2018 show that the Veteran sought opinions and subsequent surgery from medical providers outside of the VA, however, his insurance/Medicare would not cover the costs. A November 2017 VA record reflects that the outside physician suggested stem cell therapy. Specifically, a September 2017 VA record indicates that the Veteran brought outside records from Inland Empire Orthopedics and that a right knee surgery (arthroscopy) was scheduled but canceled because the Veteran’s insurance would not cover it. Private treatment records from providers listed above are not associated with the claims file. Any outstanding VA records, particularly from Loma Linda and Long Beach, should be obtained, and the Veteran should be provided an opportunity to identify any additional outstanding relevant private medical records on remand. An effort must be made to locate and associate any outstanding private medical records with the Veteran’s claims file. Lastly, the issue of entitlement to compensation under the provisions of 38 U.S.C. § 1151 requires a multifactor and complex analysis in its adjudication, as detailed above. Thus, the Board finds that a VA examination and medical opinion is required that addresses the multiple prongs of the 38 U.S.C. § 1151 claim to adjudicate the claim. See 38 C.F.R. § 3.159(c)(4) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). The matters are REMANDED for the following action: 1. Obtain the Veteran’s SSA records, to include the most recent disability determination for SSDI benefits and the records upon which the determination was based. All SSA records should be associated with the record. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the appellant of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to identify any relevant outstanding private treatment records related to the 1151 claim on appeal, to specifically include, but not limited to, treatment or surgery consultation for the right knee and records from Inland Empire Orthopedics. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified, and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. 3. Obtain any outstanding VA treatment records, particularly from Long Beach VAMC and Loma Linda VAMC, and associate them with the claims file. 4. Schedule the Veteran for a VA examination for his 1151 claim with a qualified medical professional, preferably an orthopedic surgeon, to render a medical opinion. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The VA examiner’s attention is drawn to the following facts with citations to the record: • A January 2014 magnetic resonance imaging (MRI) of the right knee shows findings of a radial tear of the body/anterior horn of the medial meniscus were noted with the lateral meniscus being intact. Partial thickness cartilage defects within the lateral and medial patellar facets and within the lateral femoral condyle were also noted. See VBMS entry with document type entitled “Medical Treatment Record - Government Facility,” with #1 in the Subject line, received 09/05/2014, on pages 5-7. • Of record is the informed consent for the May 1, 2014 surgical procedure for the right knee. See VBMS entry with document type entitled “CAPRI,” with #2 in the Subject line, received 01/30/2016, on page 122. • A May 1, 2014 operative report is of record. See VBMS entry with document type entitled “CAPRI”, received 11/18/2016, on page 13-14; generally (for preoperative, intraoperative, and postoperative nurse reports); imaging on pages 18-27. • The Veteran indicated that he was “feeling ok,” in a May 2, 2014 postoperative telephone assessment and reported 1 out of 10 pain in his right knee. See VBMS entry with document type entitled “CAPRI,” with #2 in the Subject line, received 01/30/2016, on pages 103-104. • On May 14, 2014, the Veteran presented for a 2 week post-operative checkup for his right knee. He reported that pain was decreasing and was still using crutches. He stated left knee pain as well and wanted to know when the May 1, 2014 surgeon can scope the left knee. The Veteran was to return to the clinic in 4 weeks when the right knee healed and back to strength for a referral for possible left knee arthroscopy. See VBMS entry with document type entitled “CAPRI,” with #2 in the Subject line, received 01/30/2016, on pages 102-103. • On May 16, 2014, the Veteran stopped by the VAMC and advised that he was out of acetaminophen and was in level 10 pain. See VBMS entry with document type entitled “CAPRI,” received 05/28/2014, on page 4. • May 30, 2014 VA medical records indicate that the Veteran fell getting out of the shower the previous night (May 29, 2014) onto his right knee and had experienced increased right knee pain since the incident. X-ray imaging is of record. See VBMS entry with document type entitled “Medical Treatment Record - Government Facility,” with #1 in the Subject line, received 09/05/2014 on page 3. See also VBMS entry with document type entitled “CAPRI,” received 09/22/2015, on pages 91-97. • Of record is a July 2014 MRI of the right knee. It was noted that the injury pattern was consistent with recent medial retinacular tear and transient lateral patellar dislocation. There was a stable pattern of cartilage thinning throughout the medial femorotibial compartment. See VBMS entry with document type entitled “Medical Treatment Record - Government Facility,” with #1 in the Subject line, received 09/05/2014, on pages 1-3. • The Veteran reported for a follow-up appointment after the fall in the shower. It was noted the Veteran twisted his right knee and had patella-femoral pain. The Veteran had M-PFL pan tenderness but did not have a limp. There was no effusion, full range of motion, a positive patellar grind, post apprehension sign, media push on patella eliminated P-F pain with knee flexion. A knee sleeve with medializing buttress was ordered and the Veteran was instructed if it did not help for the P-F pain, to return to clinic for consideration of right knee arthroscopy, lateral release and imbrication of the medial patellar retinaculum. See VBMS entry with document type entitled “CAPRI,” with #2 in the Subject line, received 01/30/2016, on pages 69-70. • On July 15, 2014, the Veteran reported to the clinic to request access to pictures or videos of the May 2014 right knee surgery. See VBMS entry with document type entitled “CAPRI,” with #2 in the Subject line, received 01/30/2016, on page 68. • In October 2014, the Veteran requested an appointment with the orthopedic clinic with Dr. Dossett and specifically NOT with Dr. Cranford, the May 1, 2014 surgeon. See VBMS entry with document type entitled “CAPRI,” received 02/04/2015, on page 15. • In December 2014, an orthopedic surgery consultation with Dr. Cranford notes that the Veteran was back for his right knee, chondromalacia patella at arthroscopy and still having some retropatellar pain. The Veteran was offered a steroid injection. See VBMS entry with document type entitled “CAPRI,” with #2 in the Subject line, received 01/30/2016, on pages 49-50. • A March 2015 physical therapy consultation note reflects that the Veteran was never able to regain pain free right knee extension and flexion following his May 2014 meniscal repair. The Veteran reported that his right knee is “stuck” and “locks” when he bends it back. He stated that the ACL and MCL instability found during the operation was not repairable at the time (per Veteran’s report). See VBMS entry with document type entitled “CAPRI,” with #2 in the Subject line, received 01/30/2016, on pages 9-10. • The Veteran reported to Long Beach VAMC on May 11,2015 with bilateral knee pain, right worse than left. The Veteran reported that he underwent a partial meniscectomy in the right knee but motion and knee pain became more severe in the right knee after the procedure. He stated that he was found to have an ACL tear and MCL tear on MRI. X-rays were taken at this time. See VBMS entry with document type entitled “CAPRI,” with #3 in the Subject line, received 01/30/2016, on pages 88-89. • A request for surgery was made in June 2015 for a diagnostic right knee arthroscopy. The Veteran and his wife expressed concern that he had multiple surgeries and desired to have the most senior resident and an attending involved in his case. See VBMS entry with document type entitled “CAPRI,” with #3 in the Subject line, received 01/30/2016, on pages 59-60. • A right knee diagnostic arthroscopy and debridement and removal of plica was performed on August 4, 20115 at Long Beach VAMC. See VBMS entry with document type entitled “CAPRI,” with #3 in the Subject line, received 01/30/2016, on pages 10-40; orthopedic surgery operative note on pages 23-24. • An August 20, 2015 orthopedic surgery followup note is of record. See VBMS entry with document type entitled “CAPRI,” with #3 in the Subject line, received 01/30/2016, on pages 8-9. • On September 17, 2015, the Veteran presented with photographs from the August 2015 surgery requesting to speak to Dr. Jain for him to review the photographs and discuss surgical procedures done. The Veteran stated that he wanted Dr. Jain to perform a left knee surgery as well but was told Dr. Jain was going to University of California Irvine the following month. agreed to follow up with Loma Linda VA for other knee issues. See VBMS entry with document type entitled “CAPRI,” with #3 in the Subject line, received 01/30/2016, on pages 1-2. • In a November 3, 2015 VA emergency note, the Veteran presented to the ER and requested a tramadol refill although he had an appointment later in the afternoon. The ER physician noted that since the surgeries, it is in several of Ortho notes that he returned often asking for stronger narcotic medications and that he runs out of them before the date of refill. The Veteran indicated that he was told that he was missing some cartilage from his femoral condyle and would need a total knee replacement but was too young for it and the only treatment is pain medication. X-rays of the right knee were performed, which were normal and opiate dependency was ruled out. See VBMS entry with document type entitled “CAPRI,” with #4 in the Subject line, received 01/30/2016, on pages 53-55. • The Veteran reported for an orthopedic surgery consultation on January 6, 2016. He stated that he continued to have right knee pain and was taking opioids like peanuts. Clinical and x-ray findings were noted to have been negative. MRI findings showed abnormal bursal fluid collections. Impression was of a partial tear of anterior cruciate ligament with tiny knee joint effusion. There were mild patellar cartilage degenerative changes consistent with mild chondromalacia in the appropriate clinical context and evidence of partial medial meniscectomy. See VBMS entry with document type entitled “CAPRI,” with #4 in the Subject line, received 01/30/2016, on pages 11-12. • An April 2016 orthopedic surgery note reflects that following a second surgery performed in Long Beach, the doctor stated MFC cartilage defect but otherwise benign knee. It was noted that pictures in clinic from surgery confirmed a rather benign knee arthroscopic examination with mild CM of the MFC. See VBMS entry with document type entitled “CAPRI,” received 06/09/2016, on pages 8-13. • The Veteran had a June 2016 orthopedic visit and MRI imaging. See VBMS entry with document type entitled “CAPRI,” received 09/15/2016, on pages 39-42. • In July 2016 VA medical records, the Veteran reported right knee pain of 10 out of 10 severity. Precipitating factors were noted of no known injury, previous surgery “doctor removed cartilage medial femur in 2014.” See VBMS entry with document type entitled “CAPRI,” received 09/15/2016, on pages 12 (very bottom of page)-14. • During an August 2016 VA examination for the knees (Disability Benefits Questionnaire (DBQ)) the Veteran reported that his right knee became worse after an endoscopic procedure was performed 3/2014 and cartilage was removed from the medial femur. See VBMS entry with document type entitled “C&P Exam,” received 08/26/2016, on page 4. • A December 2016 VA medical record indicates a diagnosis of right knee pain due to osteoarthritis and a procedure of right knee geniculate nerve blocks times 3. See VBMS entry with document type entitled “CAPRI,” received 09/22/2018, on pages 196-197. • In September 2017, the Veteran brought outside records from Inland Empire Orthopedics and stated he was supposed to have an arthroscopy of the right knee performed for medial compartment and possible tear but his outside insurance would not cover the surgery and it was cancelled. See VBMS entry with document type entitled “CAPRI,” received 09/22/2018, on page 119. • In May 2018, the Veteran reported that he was going to a private orthopedic and requested x-ray and MRI imaging of the right knee. X-ray showed no fracture or dislocation but showed degenerative changes and bone spur. See VBMS entry with document type entitled “CAPRI,” received 09/22/2018, on pages 86-90. • An August 2018 VA orthopedic note reflects that the Veteran reported that he was told there was a groove of cartilage gone under his knee cap. See VBMS entry with document type entitled “CAPRI,” received 09/22/2018, on page 27. • Imaging of the Veteran’s knee from the May 2014 surgery is of record. Specially, the Veteran made an annotation that “picture 1 shows cartilage that was removed by Dr. Cranford. See VBMS entry with document type entitled “CAPRI,” received 11/18/2016 on page 18, generally. See also VBMS entries (3) with document type entitled “Medical Treatment Record - Government Facility,” received 08/20/2014. See also VBMS entry with document type entitled “Medical Treatment Record – Non-Government Facility,” received 10/30/2015. • The Veteran’s testimony during the October 2019 Board video conference hearing is of record. The Veteran contends that he had worsening symptoms following the May 2014 surgery and that the August 2015 VA surgeon told him that a large track of cartilage had been removed from the femur of the knee and that the previous doctor did not know what he was doing because there was no reason to remove cartilage from the femur. See VBMS entry with document type entitled “Hearing Transcript,” received 10/31/2019. • Additional records may have been associated with the claims file, as the Board has requested that the Veteran give VA permission to obtain additional private records and has requested updated VA treatment records. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to answer the following questions: a) Whether based upon the evidence of record and sound medical principles was reasonable diligence and preparation including any diagnostic tests or examinations typically performed prior to such right knee surgery performed on May 1, 2014, as such of a physician/surgeon exercising the degree of skill and care ordinarily required of the medical profession? b) Whether based upon the evidence of record and sound medical principles was the May 1, 2014 right knee surgery performed exercising the degree of skill and care ordinarily required of the medical profession and whether any improper or unauthorized procedures performed during the surgery? Please address the Veteran’s contention that the cartilage of the right knee femur was removed. Review and address the imaging of the right knee from the May 2014 surgery. (Locations in the file of the imagining are provided above.) c) Whether based upon the evidence of record and sound medical principles the Veteran provided proper informed consent after being provided information that describes the procedure and risks involved to the degree ordinarily required of the medical profession for the VA to perform the May 2014 right knee surgery? d) Whether based upon the evidence of record and sound medical principles was there an additional disability or worsening/aggravation of existing right knee symptoms following the May 2014 surgery. e) Whether based upon the evidence of record and sound medical principles that an additional disability or worsening symptoms of the Veteran’s right knee following the May 2014 surgery was due to either (A) 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 (B) an event not reasonably foreseeable? Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, 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.