Citation Nr: 21064027 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-21 652 DATE: October 18, 2021 ORDER Entitlement to Veterans' Administration (VA) compensation benefits under 38 U.S.C. § 1151 for residuals of a second total right knee replacement (right knee disorder) performed at the Miami VA Medical Center in September 2013 is denied. FINDING OF FACT The preponderance of the evidence shows that the second total right knee replacement performed at the Miami VA Medical Center in September 2013 did not cause an additional disability because of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or was due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for VA compensation benefits under 38 U.S.C. § 1151 for a right knee disorder due to a second total right knee replacement performed at the Miami VA Medical Center in September 2013 have not been met. 38 U.S.C. §§ 1151, 1732, 5107; 38 C.F.R. §§ 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1961 to November 1963. In October 2019, the Veteran testified at a Board of Veterans' Appeal (Board) videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. In January 2020, the undersigned issued a decision denying the appeal. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 order, which incorporated the parties December 2020 Joint Motion for Remand (JMR), the Court vacated and remanded the Board's decision. In May 2021, the Board remanded the appeal to address the concerns of the JMR. The Concerns Raised by the JMR and Post-Remand Compliance As to the concerns raised in the JMR and post-Remand compliance, the Board finds that the post-remand development substantially complied with both because while the appeal was in Remand status the regional office (RO) obtained and associated with the record all identified and available VA and private treatment records even though Dr. Patel's records were not obtained as directed by the JMR. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required). As to Dr. Patel's records, the Board has reached this conclusion because the pre-Remand records shows that in August 2018 the RO received some records from Dr. Patel including an October 2016 operation report and January 2017 X-rays and post-Remand the record shows that the RO requested these records, in a July 2021 letter the RO notified the Veteran that Dr. Patel had not replied to its' records request as well as it was his responsibility to obtain these records and his appeal would be decided without them if he did not obtain them, later in July 2021 Dr. Patel notified the RO that he wanted a fee to copy and mail these records to the RO, in the August 2021 supplemental statement of the case (SSOC) the appellant was notified that the RO could not take any further action to obtain these records because Dr. Patel notified the RO that he wanted a fee to copy and mail them to the RO, and subsequently the Veteran did not obtain his records from Dr. Patel and send them to the RO. Given the above post-Remand development, the Board finds that further delay by remanding the appeal to try to obtain Dr. Patel's records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development does not serve the interests of the Veteran or the VA. As to other post-Remand compliance, the Board finds that the post-remand development substantially complied with the Remand because it finds that the VA examination and opinions obtained in August 2021 provides all needed information for the Board to adjudicate the claim under all applicable laws and regulations. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, supra; Dyment, supra. The 1151 Claim The Veteran in writings to the RO and at his personal hearing claims, in substance, that his second total right knee replacement with removal of hardware performed at the Miami VA Medical Center in September 2013, because of a failed 2009 right knee replacement performed by a private physician, caused additional disability because the VA physician removed an excess of bone from his right knee. It is important for the Veteran to understand that this procedure is complex and that not all surgical procedures create the intended results. The fact that any surgery did not lead to the hoped result does not always create a basis for compensation, particularly under VA law, where compensation under this law, for this reason, is very narrow. Under 38 U.S.C. § 1151, in order to warrant compensation the claimant must demonstrate that the VA hospital care, medical or surgical treatment, or examination in question resulted in an additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing such care, treatment, or examination, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. See also VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). In determining whether a claimant has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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(c)(2). 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. In this regard, determinations of whether there was informed consent involve consideration of 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 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not "reasonably foreseeable" is 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. 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. 38 C.F.R. § 3.361(d)(2). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above criteria in mind, the record shows that in September 2013 the Veteran had a total right knee replacement with removal of hardware from an earlier, 2009, private right knee replacement. Therefore, the first question for the Board to consider is whether the evidence of record shows a worsening of the Veteran's knee disability after undergoing the surgery at the VA facility in September 2013. In this regard, the record shows that in 2009 the Veteran had an unicompartmental right knee replacement. See, e.g., VA treatment records dated in Aril 2013. Following the 2009 surgery it was reported that the Veteran did not recover well after a sufficient period of rehabilitation, reported that he was experiencing instability and chronic pain over the medial aspects of the knee, and noted that he needed to walk with a cane. During an April 2013 VA Orthopedics Consult, range of motion for the right knee was 6 to 120 degrees. X-rays of the right knee showed a well-placed unicompartmental right knee replacement with no evidence of loosening. After the private surgery in 2009, VA treatment records show the Veteran never fully regained function and continued to have pain and instability. Conservative measures of treatment were exhausted, and the Veteran agreed to surgical intervention. The etiology of the Veteran's right knee pain was unclear and explained to the Veteran before surgery. In August 2013, the Veteran signed a consent agreeing to the second to knee surgery. In September 2013, the Veteran thereafter underwent removal of hardware and a total right knee replacement at the Miami VA Medical Center. After the September 2013 surgery, VA treatment records show the Veteran had continued generalized knee pain and was slow to progress in physical therapy. In this regard, in a June 2014 VA Orthopedic Surgery Outpatient Note, the range of motion of the right knee was 0 to 90 degrees. Given the above VA treatment records which shows flexion of the right knee dropped from 120 degrees in April 2013 (pre-surgery) to 90 degrees in June 2014 (post-surgery), the Board finds that the preponderance of the evidence shows that the Veteran had a worsening of his right knee disability after undergoing surgery at the VA facility in September 2013. See Owens, supra. Consequently, the Board concludes that the Veteran meets the first element required to establish benefits under section 1151. Accordingly, the Board finds that this 1151 claim turns on the question of whether this disability was, in substance, due to VA's negligence and/or a not reasonably foreseeable event. See VAOPGCPREC 40-97. In this regard, the record shows that in October 2016 the Veteran had a third right knee surgery from a private physician (i.e., a right knee revision total arthroplasty) and in the operative report the physician opined that the surgery was needed due to a "failed" earlier total right knee replacement. However, the Board finds that this statement has limited probative value on the issues of whether there was "fault" or an "unforeseen circumstance" on the part of VA at the time of the September 2013 surgery. See Owens, supra. The Board has reached this conclusion because the private opinion is unsupported by clinical evidence, because the opinion does not actually say that the failure was due to VA "fault" or an "unforeseen circumstance," and because, prior to the September 2013 surgery, the Veteran signed a consent that warned him of potential complications and did not guaranteed success. See Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). Next, the Board notes that at the October 2019 hearing the Veteran stated he would obtain a letter from a physician as to the questions of fault" and/or an "unforeseen circumstance" and he was given 60 days to do so. However, the Veteran has to date not submit a letter to the Board for review. The Board cannot delay the adjudication of this case further. On the other hand, the October 2016 and August 2021 VA examiners opined, in substance, that the Veteran's September 2013 surgery did not result in a worsening of his right knee disability due to VA's negligence or due to a not reasonably foreseeable event. The Board finds the VA examiners' opinions both competent and credible as well as the most probative evidence of record because, unlike the October 2016 statement, they were provided after a review of the record on appeal; they considered, among other things, the available records surrounding the first 2009 private knee replacement surgery, the post-operative treatment records following the 2009 surgery, the September 2013 surgery records including the consent, the post-operative treatment records following the September 2013 surgery, and/or the records surrounding third right knee surgery in October 2016; they considered the Veteran's lay claims regarding observable symptomatology; and they include detailed medical explanations for the opinions which opinions were supported by citation to evidence found in the claims file. See Owens, supra; Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). The Board finds that it will not get better medical opinions regarding this claim. Furthermore, the Board finds that the Veteran is not competent to provide opinions as to negligence and a not reasonably foreseeable event because he does not have the required medical expertise to provide answers to these complex medical questions. See Davidson, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for compensation under 38 U.S.C. § 1151 even though the September 2013 total right knee replacement with removal of hardware from an earlier, 2009, private right knee replacement caused additional limitation of flexion because the most probative evidence of record shows that the additional disability was neither due to VA's negligence nor a not reasonably foreseeable event. See 38 U.S.C. § 1151; 38 C.F.R. §§ 3.361, 17.32; VAOPGCPREC 40-97. In reaching the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz, supra; Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.