Citation Nr: 21069904 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 17-48 659 DATE: November 22, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for left leg nerve damage is denied. FINDING OF FACT The Veteran's left leg nerve damage is not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for left leg nerve damage 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 served on active duty in the United States Navy from December 1976 to February 1981. This matter is on appeal from an August 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2019. A transcript of the hearing is of record. The Board remanded this matter in May 2021 for additional development. As the actions specified in the remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for left leg nerve damage Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability that is not the result of the Veteran's own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability were service connected. See 38 C.F.R. § 3.361. 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. 38 C.F.R. § 3.361(a). 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 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, it must be shown that the hospital care or medical or surgical treatment caused that disability; and VA (1) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. In evaluating the Veteran's claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C. § 1151(a)(1). The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for left leg nerve damage caused by an orthopedic surgical procedure performed in March 2010 at the VA Medical Center (VAMC) in Baltimore, Maryland. The Veteran specifically contends that he suffered nerve damage in the left hip surgery which resulted in left leg peroneal neuropathy. The Veteran testified at his October 2019 hearing that this condition was not present prior to undergoing surgery and the condition causes him to have chronic pain, difficulty walking, and trouble performing daily tasks. VA treatment records show that the Veteran underwent a left hip arthroplasty revision in March 2010 at the Baltimore VAMC. In August 2010, the Veteran sought treatment at the Baltimore VAMC for left foot drop. A sensory nerve conduction study was performed, and the results suggested left peroneal neuropathy which the VA examiner characterized as "relatively severe" and stated the condition was likely related to the Veteran's March 2010 left hip surgery. In March 2011, the Veteran was assessed again following continued reports of tingling in his left foot which progresses up his leg and becomes sharper if he does not take his medication. A diagnosis of left leg neuropathy was confirmed. VA treatment records confirm that the Veteran continues to take medication regularly to manage his left leg peroneal neuropathy. A VA medical opinion was obtained in July 2013. Following review of the Veteran's claims file, the VA examiner determined that the Veteran's VA medical treatment less likely than not caused his additional disability of left leg nerve damage. The VA examiner determined that the Veteran's VA medical treatment less likely than not caused his left leg peroneal neuropathy. Instead, the VA examiner opined that the left leg peroneal neuropathy was due to his diabetes mellitus and therefore it is not likely that the claimed disability was caused by or became worse as a result of from carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel and that the additional disability results from an event that could not have been reasonably foreseen by a reasonable healthcare provider. Pursuant to the May 2021 remand, the Veteran underwent an additional VA examination in September 2021 to address the Veteran's contention that the March 2010 left hip surgery resulted in his left leg nerve damage. Following the examination as well as a review of the Veteran's claims file and pertinent medical evidence, the VA examiner concluded that the Veteran's additional disability did not result from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; or from an event that could not have reasonably been foreseen by a reasonable healthcare provider; or failure on the part of VA to timely diagnose and/or properly treat the disability. In making this finding, the examiner remarked that the sciatic nerve, particularly its peroneal division, is known to be at risk for injury during total hip arthroplasty, especially when a posterior approach is used as was the case during the Veteran's surgery. The examiner further noted that although this type of injury to the peroneal branch division is rare, it is a known complication of left hip surgery with a posterior approach. After careful review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to VA compensation pursuant to 38 U.S.C. § 1151. Initially, the Board notes that there is no dispute that the Veteran presently has additional disability in the form of left leg nerve damage, diagnosed as peroneal neuropathy. Moreover, there is no dispute that this additional disability resulted from the surgical treatment furnished by VA. However, the evidence of record does not support a finding that the Veteran's post-operative complications are proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event that was not reasonably foreseeable. In making this determination, the Board notes that, prior to undergoing the left hip revision surgery, the Veteran was informed about the possible complications and risks associated with the procedure, such as nerve injury, temporary or permanent numbness or weakness of the extremity, less than complete recovery of normal functions or pain relief, and the Veteran accepted these risks when he signed an informed consent form. Moreover, VA treatment records document that upon reporting pain in August 2010, a few months after the surgery, the Veteran was promptly afforded a consultation with a VA neurologist, who diagnosed the nerve damage, prescribed medication for pain management and outlined a care plan. VA treatment records further show that the Veteran received regular follow-up care with his VA primary care physicians in the years following his surgery. Finally, two VA examiners who fully reviewed the Veteran's medical history concluded that the Veteran's additional disability was not caused by a failure on the part of VA to timely diagnose or properly treat the condition nor was it due to a reasonably unforeseeable event. In light of the above, the Board does not find any probative medical evidence to suggest that the Veteran's additional disability, claimed as left leg nerve damage, was caused by a failure of his VA physicians to exercise the degree of care that would be expected of a reasonable health care provider. The evidence clearly establishes that the Veteran's post-operative complications are considered an ordinary risk or foreseeable event of the type of procedure performed, and the Veteran was properly informed of these risks. Moreover, there is no evidence to suggest that his treating physicians departed from acceptable levels of medical care or the performance of professional duties expected of a reasonable health care provider. In this regard, the Veteran received regular follow-up care after his surgery including testing, imaging, and physical examination of his left leg and hip. When his treating physicians concluded that the complications were due to nerve damage, they advised the Veteran as such and continued to provide him care to alleviate his pain and discomfort. As such, the Board finds no probative medical evidence of carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA in furnishing medical treatment to the Veteran. Further, aside from the Veteran's own unsupported contentions, there is no competent evidence showing 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 or resulted in the Veteran's left leg nerve damage. In this regard, there is no evidence in the medical records to support a finding that the Veteran's VA physicians failed to exercise the degree of care that would be expected of a reasonable health care provider or furnished medical care without the Veteran's informed consent. The Board finds it significant that the Veteran has not presented or identified any medical opinion or other competent or credible evidence to support his claim. Finally, in reaching this conclusion, the Board has considered the Veteran's lay contentions and finds them not probative. To the extent that the Veteran argues that the left leg nerve damage was caused by VA's improper or negligent treatment, he is not competent to render an opinion on causation or the proper standard of care, as he has not been shown to possess the requisite training or credentials needed to render an expert medical opinion. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay opinions do not constitute competent medical evidence and lack probative value. The Veteran's lay statements to such a complex medical question, in regard to the etiology of his nerve damage, are not the type of statements for which a lay witness without medical expertise can provide competent evidence. As such, his lay contentions do not constitute competent medical evidence and lack probative value. Consequently, the Board gives more probative weight to the objective medical evidence of record rendered by qualified medical professionals. In summary, the Board finds that the most probative evidence establishes that the Veteran's post-left hip arthroplasty revision left leg nerve damage was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care, or an event not reasonably foreseeable. The benefit of the doubt doctrine is therefore not for application, and the Veteran's claim for entitlement to compensation pursuant to 38 U.S.C. § 1151 is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.