Citation Nr: 21069581 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 13-33 438 DATE: November 18, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right knee disorder is denied. REMANDED Entitlement to service connection for residuals of a fractured nose is remanded. FINDING OF FACT The Veteran does not have a right knee disability as a result of hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program furnished by VA. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right knee disorder have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2016. A transcript is of record. The Board remanded the case for further development in May 2016, March 2019, and August 2020. The case has since been returned to the Board for appellate review. Law and Analysis In March 2019, the Board directed the agency of original jurisdiction (AOJ) to attempt to obtain any medical records or other evidence prepared in the context of a Federal Tort Claims Act (FTCA) claim. In an August 2020 email, the Office of General Counsel stated that the Veteran's claim was not litigated. As such, there were no records, such as pleadings or judgments. Moreover, the Office of General Counsel stated that it does not release its files for benefit determinations. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 38 U.S.C. § 1151 A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B) (2012); 38 C.F.R. § 3.361(a)-(d) (2017); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). 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, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA's negligence. Viegas, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, additional disability caused by a veteran's failure to follow properly-given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (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 that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). Regarding carelessness or negligence, 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 was the proximate cause of 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. 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. See 38 C.F.R. § 3.361 (d)(1). Regarding reasonable foreseeability, 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. 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements - a veteran's disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that compensation under 38 U.S.C. § 1151 for additional right knee disability is not warranted. The Veteran has contended that he developed an additional right knee disability as a result of an injury that he sustained in a parking garage of a VA medical facility on July 21, 2008. Specifically, during a March 2016 hearing, the Veteran testified that he injured his right knee while attempting to "squeeze" into his truck due to another individual parking too closely to his vehicle. The Veteran has also contended that a delay in treatment of his right knee by VA caused additional disability. During a March 2016 hearing, the Veteran testified that he sought treatment for his right knee pain approximately two months after a July 2008 injury. At that time, Dr. R. (initial used to protect privacy) indicated that the Veteran's knee was completely unremarkable and normal. The Veteran's attorney indicated that the Veteran's knee pain had almost resolved, and he was instructed to wear a knee brace, rest, and avoid stressful activities. The Veteran further testified that he received physical therapy in November 2008 and that he was informed that x-ray findings showed no problems with his right knee. He was referred to an orthopedist two years after his reported injury. The Veteran's VA medical records show that he attended an appointment with his primary care physician on July 21, 2008. In a July 30, 2008, VA psychiatry record, a VA licensed social worker noted that she discussed behavioral and cognitive mechanisms with the Veteran, including his irritability and reaction to parking difficulties. On July 31, 2008, the Veteran called to schedule a dermatology appointment. The Veteran attended his VA dermatology appointment in August 2008, but no complaints or symptoms of knee problems were documented at that time. In a September 12, 2008, VA medical record, a registered nurse stated that the Veteran informed her that he injured his knee in late July 2008 in the parking lot of the VA facility. The Veteran also reported that he did not seek medical attention at the time of his injury, but wished to schedule an appointment with his primary care physician to evaluate his condition. In a September 15, 2008, VA primary care record, the Veteran reported having a 2-to-3-week history of right knee pain. The Veteran denied having any symptoms of redness, and there was no evidence of swelling, wounds or abrasions. He treated his condition with over-the-counter medication and a knee brace from a prior injury to his left knee. A physical examination of the Veteran was completely unremarkable and normal, and his right knee range of motion for flexion and extension was full. There was no evidence of soft tissue edema, effusion, erythema, popliteal fossa fullness or edema, or tenderness to palpation. The Veteran's gait was intact, and he was not using any assistive devices except for a knee brace. The VA primary care physician stated that the Veteran's knee joint pain had almost completely resolved and was gradually improving. He also concluded that x-ray studies were unnecessary. The primary care physician advised the Veteran to avoid high impact activities on the knee joints and instructed him to continue using his knee brace, heating pad, and over-the-counter medication. In an October 21, 2008, VA nursing record, the Veteran reported having right knee pain that was a 4 on a scale from 1 to 10. It was also noted that he "verbalized no need to address pain/comfort issues" during his visit. An October 21, 2008, VA primary care record further noted that a review of systems revealed no joint pain or muscle spasms. In a November 2008 VA psychiatric record, the Veteran reported that his right knee pain was not improving. It was noted that he was advised to go to the emergency room if he required immediate attention. In November 2008, the Veteran inquired about undergoing magnetic resonance imaging (MRI) testing for his right knee. The Veteran was advised that x-ray imaging was the first step for evaluating his condition and that, based on those results, a physician would then determine whether an MRI was necessary. A November 2008 VA x-ray report showed an impression of a negative right knee. It was also noted that there was no fracture, dislocation, or other bony abnormality. The Veteran did not report having any right knee pain during his appointments with his primary care physician in 2009. See, e.g., February 2009 VA medical record. In a May 2010 VA primary care record, the Veteran reported having continued right knee pain. A May 2010 VA x-ray report noted an impression of suprapatellar joint effusion with mild medial compartment joint space narrowing. At that time, a VA physician instructed the Veteran to continue using his knee brace and taking over-the-counter pain medication. The Veteran was also referred for physical therapy. A June 2010 VA medical record noted that the Veteran attended one physical therapy session, but he failed to appear for his other scheduled appointment. A VA physician noted that the Veteran should be advised to schedule an additional physical therapy appointment. The physician also noted that he would have no problem making a referral to the orthopedics department after the Veteran completed conservative treatment. In a June 2010 VA medical record, the Veteran stated that he wanted to schedule an appointment with the orthopedics department and that he did not understand why he must undergo physical therapy. The Veteran attended physical therapy appointments in June 2010 and July 2010. A July 2010 VA physical therapy noted that the Veteran was apprehensive about physical therapy and that he was performing exercises without proper technique. The Veteran was afforded an orthopedic consultation in August 2010. At that time, he recounted injuring his right knee in the parking lot of the VA facility. The Veteran stated that his condition "got better" over time, but started bothering him again. A VA orthopedist diagnosed the Veteran with an exacerbation of right knee mild medial degenerative joint disease. The Veteran was provided strengthening exercises to help improve his symptoms, and it was noted that he declined cortisone injections. An October 2010 VA physical therapy consultation record noted that the Veteran had decreased function that was consistent with the effects of degenerative changes and possible medial meniscal compromise. It was also noted that the Veteran reported wearing orthotics that caused his feet to hurt. In a November 2010 VA consultation, an orthopedist noted that the Veteran and his spouse were very fixated on an injury that he sustained in the parking lot of the VA facility. The orthopedist stated that the Veteran had been resistant to any kind of needle entering his knee and that he refused a cortisone injection during his last appointment. The orthopedist indicated that the Veteran had symptoms of chondromalacia of the patella with no clear-cut symptoms of a torn meniscus; however, he ordered an MRI study "to be complete." A January 2011 VA medical record noted that an MRI could not be scheduled because the Veteran was unresponsive. A February 2011 VA orthopedic record noted that an MRI report showed some articular cartilage loss laterally and a torn medial meniscus with a large flap. The Veteran reported that he wished to undergo an arthroscopic meniscotomy, which was performed in March 2011. In a July 2018 VA medical opinion, the examiner opined that the Veteran's right knee disorder was less likely than not caused by or worsened as a result of the VA treatment at issue. In so finding, the examiner stated that there was no clear evidence of delay in the Veteran's care after his right knee injury. He stated that the Veteran received appropriate follow-up care when he sought treatment one month after his reported injury. The examiner noted that the Veteran's knee pain was improving and that he was able to bear weight. The examiner stated that the Veteran could have reported to the emergency department, as he had for other conditions, but he chose not to do so, which was an indication that his symptoms were improving. The examiner also explained that it would not be reasonable to escalate the Veteran's level of care due to his improving condition and normal x-ray findings. The January 2018 VA examiner further opined that it was less likely as not that the additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care. In addition, the examiner stated that there was no indication that an event occurred that could have been reasonably foreseen by a treating provider. In so finding, the examiner stated that the Veteran was provided the appropriate standard of care. The Veteran's knee symptoms were improving and resolved in 2008, which indicated that there was no internal derangement to treat surgically. The examiner also stated the 2010 MRI report showed findings that were degenerative in nature and not clearly the result of the Veteran's twisting injury in 2008. The January 2018 VA examiner further opined that it was less likely as not that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. In so finding, the examiner stated that there was no evidence that any failure on the part of the VA contributed ot the progression of the Veteran's right knee disorder. The Veteran did not seek treatment for his right knee disorder for close to two years after the initial injury in 2008 had resolved, which indicated that no progression of the injury occurred. The Board finds the examiner's opinion highly probative because it was based on an examination of the Veteran, a review of the claims file, and consideration of the relevant medical history. The opinion was also accompanied by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA's negligence. Viegas, 705 F.3d at 1378. However, section 1151 does not extend to the "remote consequences" of hospital care or medical treatment provided by the VA, and a veteran is not entitled to obtain section 1151 disability benefits simply because he was in a VA medical facility at the time he sustained an injury. Viegas, 705 F.3d at 1378. In this case, the evidence does not show that the Veteran was undergoing hospital care, medical or surgical treatment or an examination furnished by VA when the July 2008 incident occurred. Rather, the Veteran was leaving a medical appointment at the time of the incident. During the March 2016 hearing, the Veteran indicated that he decided to "squeeze" into his vehicle after receiving several calls from his employer. The Veteran's act of "squeezing" into his car did not occur during the course of his medical treatment, and he had complete control over his own physical actions. The evidence also does not establish, and the Veteran does not allege, that VA directly caused the incident. Rather, the incident involved another individual parking in a manner that the Veteran believed was too close to his vehicle. Moreover, the evidence does not establish that VA failed to properly maintain and install equipment required for the provision of health care services. During the March 2016 hearing, the Veteran testified that he contacted VA police several times regarding a vehicle that was parked too closely to his truck; however, the police ultimately informed him that they were unable to provide him any services. The Veteran also reported having a history of working with a police bureau. He believed that the police could have assisted him by identifying the driver using the vehicle's license plate, ascertaining whether the driver had an appointment with VA, and contacting the VA medical center to request that the driver move the vehicle. However, the Veteran and his representative have not contended, and the evidence does not show, that any failure to perform such actions was a result of negligence or in any way related to furnishing medical services. Additionally, the Board notes that an injury sustained entering a vehicle in a parking garage is not an event that is not reasonably foreseeable. Under 38 C.F.R. § 3.361(d), the question of whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. See also Schertz v. Shinseki, 26 Vet. App. 362, 36769 (2013). Moreover, even assuming that the incident was not foreseeable, the incident was not part of VA hospital care, medical or surgical treatment, or examination under 38 U.S.C. § 1151. The Board has also considered the Veteran's contention that he has an additional right knee disorder due to VA treatment or a delay in receiving treatment from an orthopedist. In addition, the Veteran reported that a VA physician informed him that his right knee disorder was related to his feet. The Veteran is competent to report observable symptoms, as well as information that his treatment providers have told him. However, the Veteran has also provided some inconsistent statements regarding his right knee pain following the July 2008 incident. In this regard, in a May 2010 VA medical record, the Veteran reported having right knee pain since July 2008. In contrast, in a March 2011 VA medical record, the Veteran stated that his right knee disorder "got better" before it started to bother him again. Although the Veteran is competent to report his symptoms of right knee pain, the Board finds that such statements are not reliable. In addition, although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the etiology questions in this case are related to an internal medical process that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Significantly, the Veteran does not possess the requisite medical expertise to determine whether he has additional right knee disability due to treatment or failure to timely treat a disorder that is the result of careless, 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 an event not reasonably foreseeable. Moreover, even assuming the Veteran's statements are competent, the Board finds that the July 2018 VA examiner's specific, reasoned opinion is of greater probative weight than the generic lay statements of the Veteran. The examiner reviewed the claims file, including the lay statements, and relied on his own medical knowledge, expertise, and training. The Veteran's attorney also contended that the Veteran was entitled to compensation under 38 U.S.C. § 1151 because he was provided orthotic shoes that were wrong for his body. See March 2016 Board hearing transcript, at 29. The Veteran testified that a VA orthopedic nurse informed him that his right knee disorder was related to his feet and not his reported July 2008 injury. See id., at 24-25. As a result, the VA orthopedic nurse referred him to a private hospital for orthotic shoes. Although the Veteran reported that his right knee disorder may be related to his foot disorders, he did not report having any additional disability that may be associated with the orthotic shoes. See, e.g., March 2016 Board hearing transcript, at 31. Moreover, the Veteran has not contended that his foot disorders are related to VA treatment. When determining whether a VA medical opinion is warranted for a claim pursuant to 38 U.S.C. § 1151, the provisions of 38 U.S.C. § 5103A(d) are applicable. Trafter v. Shinseki, 26 Vet. App. 267, 278-80 (2013). As the evidence does not indicate that the Veteran has additional disability that may be associated with orthotic shoes prescribed by VA or another facility based on a referral from VA, an opinion is not necessary regarding this contention. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. REASONS FOR REMAND The Veteran has contended that he has residuals of a fractured nose that he sustained during service in 1970, including congestion, sinus problems, and frequent colds. During a March 2016 hearing, the Veteran testified that a physician informed him that his nose was "smashed" and that he must be having a hard time breathing. The Veteran's service treatment records do not document complaints or treatment for a fractured nose. However, an October 1969 service treatment record noted an impression of an upper respiratory infection. The Veteran's post-service medical records also include a handwritten January 1995 record noting that a physical examination revealed a right septal spur and an assessment of rhinitis. A May 2011 VA medical record indicated that the Veteran reported having symptoms of sinus pressure. It was also noted that a physician suspected that his symptoms were a result of sinusitis. Based on the foregoing, the Board finds that a remand is necessary to obtain a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any residuals of a fractured nose. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any residuals of a fractured nose that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify any residuals of a fractured nose. In so doing, the examiner should address the relevance, if any, of a January 1995 record that noted a right septal spur and an assessment of rhinitis. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service, to include any symptomatology or injury therein. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Wulff, 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.