Citation Nr: 21073549 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 19-36 881 DATE: December 9, 2021 ORDER Entitlement to service connection under 38 U.S.C. § 1151 for a right knee injury is denied. FINDING OF FACT The preponderance of the evidence is against find that the Veteran's right knee injury is an additional disability caused by VA medical treatment. CONCLUSION OF LAW The criteria for entitlement to service connection under 38 C.F.R. § 1151 for a right knee injury 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 honorably served on active duty in the United States Army from January 1960 to December 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. During the hearing, the Veteran waived regional office initial review of evidence received after the November 2019 statement of the case (SOC). Entitlement to service connection under 38 U.S.C. § 1151 for a right knee injury. The Veteran is seeking service connection for a right knee injury incurred during a VA stress test and lack of care of VA. The Veteran asserts that his right knee injury occurred at a VA Medical Center (VAMC) while he was walking for a stress test on a treadmill. The Veteran sought treatment thereafter with private care providers and VA provider. The Veteran asserts that he had surgery on his right knee in 2017. The Veteran claims that he still has problems with his right knee. The Veteran contends that if treatment would have been initiated sooner, he would not have had a knee replacement. See February 2018 Correspondence, February 2018 VA 21-526EZ Fully Developed Claim (Compensation), December 2018 NOD, November 2019 VA Form 9, and October 2021 Hearing Transcript. A veteran who develops disability resulting from medical care provided by VA is entitled to compensation under 38 U.S.C. § 1151 for the additional disability in the same manner as if such additional disability were service connected. The additional disability must have been proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a),(d); Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). When a veteran's claim for benefits under section 1151 was filed after October 1, 1997, as here, the current version of the statute and its implementing regulation apply. This means that, aside from considering the claim under section 1151, the Board must consider 38 C.F.R. § 3.361 as the implementing regulation, rather than § 3.358. For entitlement to compensation under section 1151, there must be evidence of additional disability. 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 medical care upon which the claim is based, to the veteran's condition after such care has stopped. The additional disability must not be the result of a veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). 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, medical care furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c). Merely showing that a veteran received care by VA and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical care 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a pre-existing condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. Additional disability caused by a veteran's failure to follow properly given medical instructions is not "caused by" VA care or treatment. 38 C.F.R. § 3.361(c)(3). The proximate cause of the additional 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 care or treatment; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care was the proximate cause of a veteran's additional disability, it must be shown that the treatment caused the additional disability; 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 care or 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). Whether the proximate cause of a veteran's additional disability 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 the 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 (2017). 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. 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). An October 2004 VA orthopedic consultation note reported that the Veteran was concerned about his right knee disability. The Veteran was diagnosed with a tear of the posterior horn of the right knee. The Veteran stated that he had injured his knee while doing the treadmill about 18 months ago; he initially had some mild knee pain, but it persisted since. The physician's assistant reported that the Veteran was not a candidate for surgery at this point because the Veteran's symptoms were minimal and because of the chronic dermatitis involving his knee area. In a January 2017 private treatment record, it was noted that the Veteran was doing better after a knee injection. In an August 2017 private hospital surgery discharge summary, it was noted that the Veteran made an excellent post-anesthetic postoperative recovery from his right triathlon total knee arthroplasty. Subsequently, after his surgery, the Veteran attended physical therapy with a private care provider. In a September 2017 private physical therapy note, it was noted that the Veteran had continued swelling and joint stiffness in his right knee. He could ambulate for longer periods and relied less on an assistive device. It was noted that the Veteran was making good progress overall. In a November 2017 physical therapy note, it was reported that the Veteran ambulated independently in the clinic without an assistive device, and his joint pain was reduced. In an October 2018 private treatment record, it was noted that the Veteran's right knee had dramatically improved with right total knee arthroplasty. He was walking quite well. He had no complaints at that time. In August 2018, the Veteran was afforded a VA examination for his right knee condition. The Veteran was diagnosed with right knee meniscal tear, right knee degenerative arthritis, and right knee status post total knee arthroplasty. However, the VA examiner stated that she was not able to provide an informed opinion without ALL medical records for review. Thus, the Board finds that the August 2018 medical opinion is inadequate for rating purposes. After VA obtained additional medical records, a VA addendum medical opinion was obtained in November 2018 from the same VA examiner who conducted the August 2018 VA examination. The VA examiner noted that an October 2004 orthopedic consultation stated that the Veteran was not a candidate for surgery at this point because of his minimal symptoms and because of the chronic dermatitis involving his knee area. The consultation note stated that the Veteran did not want to have surgery at this point because his symptoms were improving. Therapy would teach him an exercise program. He would follow-up with his primary care. The VA examiner emphasized that the October 2004 consultation note clearly stated that the Veteran was not a candidate for surgery as his symptoms were improving with conservative measures. There was no indication that the Veteran's condition became worse as a result of VA treatment at issue. The note also stated that the Veteran did not want to have surgery at this point because his symptoms were improving. The examiner concluded that the proper standard of care was followed. Conservative measures were initiated, and the Veteran responded with a decrease in symptoms and pain as evidenced by the orthopedic note of October 6, 2004. The VA examiner noted that the Veteran was on a treadmill for evaluation of his heart when he felt pain in his right knee. The injury to his knee from walking to the treadmill could not be foreseen by a reasonable healthcare provider. Further, the October 2004 consultation note clearly stated that the Veteran was not a candidate for surgery as his symptoms were improving with conservative measures. There was no indication that the Veteran's condition became worse as a result of VA treatment at issue. The note also stated that the Veteran did not want to have surgery at this point because his symptoms were improving. In review of the records from Summersville Outpatient Clinic, conservative measures were also initiated with steroidal injections. On December 12, 2016, the Veteran was given another injection with discussion of the need for joint replacement surgery in the future. On January 9, 2017, it was noted that the Veteran was doing a lot better. Summersville's notes did not indicate that the Veteran's condition was not treated appropriately by the VAMC. Dr. D. proceeded with the same conservative measures as VA had provided. There was no indication of urgency for rush for a surgery to resolve his condition. When a joint was injured, degenerative changes were a natural expected progression as the person aged. This progression could not be prevented as it was a natural aging process. The Board concludes that the November 2018 medical opinion addendum is adequate and deserving of significant probative weight. It was based on a thorough discussion of the Veteran's history and demonstrates the clinician's substantial knowledge and skill in analyzing the data and addressing the relevant factors. The November 2018 medical opinion was the most persuasive evidence on the question of whether the Veteran had an additional disability due to VA medical treatment. The opinion weighs against the claim. There are no contrary medical opinions of record. In addition, private and VA treatment records support the medical opinion. In the October 2004 VA consultation note, the physician's assistant reported that the Veteran was not a candidate for surgery at this point because the Veteran's symptoms were minimal. It was not until over a decade later that the Veteran had his right knee surgery. Private treatment records showed that after his surgery, his right knee began to improve. Thus, the Board finds that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care or treatment of his right knee. The Board has fully considered the Veteran's lay statements asserting that if right knee treatment would have been initiated sooner, he would not have had a knee replacement. While laypersons may provide competent testimony as to visible symptoms and manifestations of a disorder, they are generally not competent to offer evidence that requires medical knowledge. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Veteran does not have the medical training or skills to make this opinion. The Board finds the VA medical opinion to be of greater probative value. (Continued on next page) Based on the foregoing, the preponderance of the evidence is against the claim for compensation under the provisions of 38 U.S.C. § 1151 for a right knee injury. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.