Citation Nr: 21005575 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-19 807A DATE: February 2, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right hip disability is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a left knee disability is denied. FINDINGS OF FACT 1. Any additional disability due to the receipt of a Euflexxa shot was not the result of carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. 2. Any additional disability due to the receipt of a Euflexxa shot was not the result of carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right hip disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a left knee disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1961 to December 1964. The Veteran’s claims were previously before the Board in June 2019. At that time, the Board remanded the Veteran’s claims for additional development. Specifically, the Board determined that a remand was required to obtain informed consent documents and any records pertaining to the Veteran’s tort claim. The Board also determined that VA opinions for the Veteran’s respective disabilities were necessary. That development having been completed, the Veteran’s claim is before the Board again and will be adjudicated below. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a right hip disability 2. Entitlement to compensation under 38 U.S.C. § 1151 for a left knee disability The Veteran seeks compensation under 38 U.S.C. § 1151 for right hip and left knee disabilities. The Veteran contends that he received pain injections for Euflexxa, which caused rapid deterioration of his right hip. The Veteran further asserts that a VA physician advised him that Euflexxa injections were not recommended for hip disabilities. The Veteran stated that he was told that such injections can cause adverse reactions of the hip area. The Veteran asserts that he experienced decomposition of his hip area over a 3-month period after the injections. The Veteran asserts that his left knee pain was exacerbated by Euflexxa injections. See Statements, March 2013 and April 2013. A Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability 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 as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (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 not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether a Veteran has additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b). If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the hospital care or medical or surgical treatment 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). 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 recently 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A treatment record reflects that the Veteran received injections to his right hip in December 2012. Subsequently, in December 2012, he presented for an unscheduled follow up with severe right hip pain. A December 2012 record reflects an impression of right hip pain insufficiency fracture of the right femoral head and neck. VA treatment records also noted right hip pain, worsened since injection. A February 2013 VA treatment record noted a provisional diagnosis of right hip pain, and effusion and progressive osteoarthritis. In a December 2012 statement, the Veteran asserted that he was not advised of the side effects of the injections. A June 2013 report of contact reflects that the Veteran filed a complaint with the VA regional counsel in Brooklyn, NY. Although VA treatment records show that informed consent was obtained for the hip and knee injections, the actual informed consent documents were not associated with the claims file at the time of the last Board remand in June 2019. As such, the Board directed the RO to obtain any such documents. A medical opinion about the right hip was obtained in November 2013. The examiner opined that the additional right hip disability is not a result of carelessness, negligence, lack or skill, or similar incident of fault on the part of VA. The examiner opined that the injury was not a result of an event not reasonably foreseeable. The examiner opined that the increase in hip pain was due to a rapid progression of the underlying arthritis. The opinion did not address whether the increased pain reported after the procedure was a result of an event not reasonably foreseeable. VA treatment records show that the Veteran had two Euflexxa injections, which were administered in October 2014 and November 2014. A November 4, 2014 entry in the VA treatment records reflects that the Veteran received a Euflexxa injection the previous day. He called to report that he could hardly move his knee. In November 2019, the Veteran underwent VA examinations for his disabilities on appeal. The examiner determined that the Veteran had a current diagnosis of left knee arthritis. At the VA examination, the Veteran reported that he developed swelling after getting injections into the left knee for ongoing pain. The VA examiner noted that the Veteran had prior knee problems beginning in 2012. Nonetheless, prior to receiving injections, the Veteran denied having severe swelling. The VA examiner did not opine as to any effects of the Euflexxa injections. See e.g., February 2020 Report of Information. In a March 2020 correspondence, a VA physician clarified that the examiner who provided the previous VA opinion in 2013 no longer worked at the VA. The physician also provided that after many years and after a November 2019 examination, there were questions that could not be answered. As such, the physician indicated that the RO should redirect questions regarding the Veteran’s condition to the VA examiner who last examined the Veteran in November 2019. In September 2020, an examiner provided opinions regarding the condition of the Veteran’s right hip and left knee. As to the Veteran’s right hip, the examiner determined that the Veteran had a diagnosis of right hip osteoarthritis. The Veteran reported that he began having hip pain in 1998 or 1999, and was diagnosed with osteoarthritis of the right hip. Later, his hip condition worsened. In December 2012, the Veteran reported that his right hip pain was treated with Euflexxa. Based on a review of the Veteran’s medical records, the examiner opined that the Veteran’s preexisting left knee dishabilles were less likely aggravated as a result of injections with Euflexxa. The examiner provided that it was more likely due to a worsening of the Veteran’s underlying disease. The examiner also opined that it was less likely than not that an additional disability resulted from an event that could not have reasonably ben foreseen by primary healthcare provider or VA treatment. The examiner opined that in his opinion, the left knee injections with Euflexxa less likely resulted in any additional knee disabilities that were not present prior to the procedure. The examiner also opined that the Veteran’s additional disabilities were less likely than not the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. There was no evidence of the above noted in the review. As to the Veteran’s right hip condition, the examiner opined that it was less likely than not that any additional disability resulted from an event that could not have reasonably been foreseen by a primary health care provider or VA treatment. The examiner also opined that in his opinion the right hip injections with Euflexxa less likely resulted in additional right hip disabilities that were not present prior to the procedure. The examiner opined that the Veteran’s additional disabilities were less likely than not the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner explained that there was no evidence of the above noted in the review, and steroid injection and Viscosupplication (Euflexxa) are standard treatments for osteoarthritis and bursitis. As such, in the examiner’s opinion, treatment with Euflexxa was an appropriate procedure for the Veteran’s hip disability. The examiner similarly opined that the Veteran’s preexisting right hip disabilities were less likely aggravated as a result of injections with Euflexxa. Rather, he found that it was more likely due to a worsening of the underlying disease. The Board assigns the September 2020 VA opinions high probative weight, as the examiner reviewed the Veteran’s medical history, relevant medical literature, and provided rationales. In a November 2020 email correspondence, the Office of the General Counsel (OGC) provided that medical records would come from a VHA facility where the Veteran received VA treatment, not the OGC. The OGC provided that there was a prior tort claim from the Veteran, but it did not go into litigation and as such there were no pleadings, judgments, or otherwise. In addition, the OGC provided that files could not be released for benefits determinations. In determining whether the Veteran prevails on his claims of entitlement to compensation under 38 U.S.C. § 1151 due to VA medical treatment, the Board must first determine whether the Veteran now has additional disabilities that did not exist prior to VA treatment. Next, the additional disabilities must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitative services, or compensated work therapy program by the VA. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 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. In the present case, it is not apparent that the Veteran suffers from additional disabilities that were not present prior to receiving Euflexxa shots. The Veteran has made statements, and medical records show, that he had both right hip and left knee disabilities prior to receiving Euflexxa shots. The Veteran continues to suffer from osteoarthritis of the right hip and left knee. Further, the medical evidence of record indicates that the Veteran’s conditions were not aggravated by Euflexxa shots, and that his disabilities were not the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. While there is evidence of receipt of Euflexxa, there is no objective evidence that this event caused the Veteran’s claimed additional disabilities. The Board acknowledges the Veteran’s lay statements regarding additional pain following Euflexxa shots; however, there is no objective corroborative evidence on this point, nor is there evidence demonstrating a mechanism of injury during the procedure that would have caused the claimed disability. Specifically, the evidence does not show carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing hospital care or medical or surgical treatment. Nor does the evidence show that the proximate cause of the claimed right hip and left knee disabilities were an event not reasonably foreseeable, because, there is no evidence that this event caused the claimed disability. (Continued on the next page)   The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in favor of this case does not reach the level of equipoise. Rather, the preponderance of the evidence weighs against a finding in favor of the Veteran’s claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a right hip and left knee disability due to VA medical treatment. Thus, the claim must be denied. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, Associate 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.