Citation Nr: 21003930 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 18-42 817A DATE: January 25, 2021 ORDER VA compensation for an additional left knee disorder, to include septic arthritis status-post viscosupplementation injection, is denied. FINDING OF FACT The Veteran’s left knee septic arthritis was not caused by VA’s carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA, or because of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for an additional left knee disorder, to include septic arthritis status-post viscosupplementation injection, have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1953 to October 1955. In November 2020, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the undersigned engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for septic arthritis of the left knee. The law provides that compensation may be paid for a qualifying additional disability that is 1) not the result of the Veteran’s willful misconduct; 2) 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; and 3) the proximate cause of the disability was 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. 38 U.S.C. § 1151. VA regulations provide that benefits under 38 U.S.C. § 1151 (a) for claims received by VA on or after October 1, 1997 for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, 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. If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. To establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. 38 C.F.R. § 3.361 (c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran’s 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 hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran’s representative. To establish the proximate cause of an additional disability or death, it must be shown that there was 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. 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). VA and private medical records indicate that the Veteran developed septic arthritis in his left knee (a type of infection of the joint fluid and/or joint tissues) as a result of a September 2014 knee injection procedure at the Dorn VA Medical Center (VAMC). The Veteran contends VA medical providers were careless, negligent, lacked proper skill, erred in judgment, or were otherwise at fault for his left knee infection. As there is no probative evidence that VA medical staff breached the applicable standard of care, the claim will be denied. A September 15, 2014 VA outpatient note indicates the Veteran’s left knee was injected with Synvisc (a viscosupplementation injection) under sterile technique. He tolerated the procedure well, and no abnormalities were noted. An aspiration was performed prior to the injection which removed 40 milliliters of fluid from the knee. The record indicates that the Veteran gave informed consent for the procedure, which included a description of the site of, reason for, and name of the procedure. The day after the procedure, the Veteran called the VAMC and reported severe pain and swelling of the left knee and was advised to report to a local emergency room (ER) for treatment. He reported to a non-VA emergency room (ER) and underwent testing which ruled out the presence of a blood clot, but did not yield a diagnosis at that time. In early October 2014, the Veteran notified the VAMC that he had knee pain at a “10/10,” and his knee was so swollen he could not walk. He reported his left foot was blue and discolored. A VA physician again advised the Veteran to report to a local ER. Private orthopedic records reflect that the Veteran was admitted for emergency treatment from October 13, 2014 to October 18, 2014. On October 15, 2014, a non-VA orthopedic doctor (Dr. Finley) diagnosed the Veteran with septic arthritis and performed an irrigation and debridement (I&D) procedure. From 2014 to 2015, the Veteran underwent several other I&D procedures and was administered antibiotics over a period of several months. Private treatment records from this time period consistently identify the Veteran’s septic arthritis as a complication due to the September 2014 left knee injection. However, these records do not discuss or otherwise show that the 2014 injection was administered improperly. In an October 2019 assessment, a non-VA doctor noted that septic arthritis is a recognized complication of arthrocentesis. In an August 2018 medical opinion, a VA-contracted physician stated there was no indication from VA treatment records that VA personnel failed to follow the appropriate standard of care during the knee injection procedure. He opined that ordinarily septic arthritis could have been recognized by a reasonable healthcare provider as a complication of SYNVISC treatment if the knee was hot and swollen after the procedure. However, the examiner emphasized that the post-procedure report indicated the Veteran tolerated the September 2014 injection well and no abnormalities were noted at that time. The examiner noted that a VA medical provider did not again see the Veteran until after receiving private treatment in October 2014, and that the Veteran was advised by a VA doctor to seek emergency care in early October. Additionally, the examiner referenced two case studies finding that additional risk factors contribute to post-injection infections, such as high body mass index, rheumatoid arthritis, immunosuppression, diabetes, and other operative infections. He also noted that septic arthritis can occur even when an injection is conducted under sterile conditions. The August 2018 examiner’s medical opinion is highly probative because the examiner is medically qualified, knowledge of the Veteran’s medical history and provided a medical conclusion with supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). An October 2019 letter from Dr. Roberson reiterated that the Veteran’s septic arthritis was a complication resulting from the September 2014 joint injection. He indicated the Veteran is unable to replace the left knee because of his history of infection secondary to the 2014 injection therapy. Dr. Roberson did not discuss whether the 2014 injection was negligently administered. At the November 2020 Board hearing, the Veteran reported receiving cortisone injections in his left knee earlier in 2014, and that he believed the September 2014 procedure would also be a cortisone injection. He stated he was unaware he would be receiving a Synvisc injection instead of a cortisone injection, and that the decision to administer the Synvisc injection was a medical error which resulted in his septic arthritis. The Veteran further reported that a VA medical provider told him in September 2018 that the 2014 injection was due to medical negligence by the VA. The Veteran’s lay testimony is not probative to the ultimate issue of whether VA medical providers breached the appropriate standard of care in administering the 2014 knee injection. As a layperson, the Veteran is not competent to give an opinion as to the medical standard of care. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). No medical provider has opined that VA medical staff demonstrated carelessness, negligence, lack of proper skill, or error in judgment in administering the September 2014 knee injection. The Veteran’s assertion that he was misinformed (or not informed) of the type of injection he would receive is contradicted by records of the September 2014 procedure. Those records indicate that he gave his informed consent to the Synvisc injection and the nature of the procedure was explained to him. Additionally, VA medical records do not reference or otherwise substantiate the Veteran’s claim that a VA medical provider admitted the 2014 injection was negligent. The preponderance of the evidence is against a finding that the Veteran’s septic arthritis was caused by VA error. No abnormalities were noted during the 2014 outpatient knee procedure and the Veteran gave his informed consent for that specific procedure. When the Veteran had pain and swelling the day after the injection, a VA doctor advised him to seek emergency care, which he did before returning to the VAMC in October 2014. The August 2018 examiner found no evidence that VA medical staff failed to follow the appropriate standard of care during or after the 2014 procedure. Significantly, no competent medical provider has opined otherwise. Therefore, entitlement under 38 U.S.C. § 1151 is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.