Citation Nr: 21009042 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 09-38 102 DATE: February 18, 2021 ORDER Compensation under 38 U.S.C. § 1151 for a residual disability due to a January 2011 left knee surgical procedure performed at the Omaha, Nebraska VA Medical Center (VAMC) is denied. Service connection for a chronic left knee disorder is denied. Service connection for a chronic right knee disorder is denied. REMANDED Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. FINDINGS OF FACT 1. The evidence of record does not demonstrate that the medical professionals involved in the Veteran’s left knee surgical procedure at the Omaha VAMC in January 2011 failed to exercise the degree of care that one would expect from a reasonable health care provider or that the Veteran has developed an additional disability that was a not reasonably foreseeable result of the medical procedure. 2. The weight of the evidence is against a finding that any bilateral knee disorder is due to or the result of the Veteran’s active service or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for a left knee disorder incurred as a result of VA surgical treatment at the Omaha VAMC in January 2011 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. 2. The criteria for service connection for a chronic left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. 3. The criteria for service connection for a chronic right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1964 to September 1966. In connection with this appeal, the Veteran testified at a hearing before the undersigned in April 2017. This case has been advanced on the Board's docket. 1151 Eligibility The Veteran asserts that VA was negligent in performing a January 2011 left knee surgical procedure. The Veteran’s 1151 claim was denied by a May 2012 rating decision. At the April 2017 Board hearing, he testified that he started having left knee problems after the January 2011 left knee surgery and required revision surgery to correct the problem. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran’s willful misconduct, the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. See 38 U.S.C. § 1151. The record shows that in January 2011, the Veteran underwent a left total knee arthroplasty. In November 2011, he underwent left knee revision surgery. In April 2012, a VA examiner reviewed the Veteran’s claims file. The examiner reported that after the surgery, the Veteran had complaints of pain and swelling. The examiner reported that the Veteran underwent revision surgery. The examiner reported that he could not find any evidence that a left knee disability was caused by any carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of VA in providing hospital care, medical and surgical treatment, and examination for the Veteran’s left knee. The examiner reported that the Veteran had unfortunate and unpredictable complications after the initial surgery. The examiner reported that there was no evidence to suggest aggravation. In November 2018, an VA orthopedic surgeon reviewed the Veteran’s claims file. The orthopedic surgeon opined that it was likely the Veteran developed an additional disability as a result of his January 2011 knee surgery. The orthopedic surgeon opined that the cause of the additional disability could be best classified as an error in judgment that could only be determined in a retrospective manner. The orthopedic surgeon reported that the prosthesis was within acceptable alignment parameters such that the Veteran would not have problems with instability or pain due to malalignment issues, which eventually proved wrong. The orthopedic surgeon opined that the left knee condition could be reasonably foreseen as possible, but that it was difficult to state the specific probability or likelihood of its occurrence. The orthopedic surgeon believed that the Veteran was appropriately followed up after surgery with monitoring of his recovery. The orthopedic surgeon reported that when the Veteran was noted to have continued problems with function, appropriate interventions were undertaking that incorporated the Veteran’s input. The orthopedic surgeon concluded that the VA orthopedic providers exercised the appropriate level of care and diligence. In January 2019, the November 2018 orthopedic surgeon reported that the January 2011 surgeon acted properly in noting the findings of the post-operative radiograph showing that the hardware could be slightly off on the ideal angle of the tibial cut but was not enough to warrant immediate revision of the operation. The orthopedic surgeon reported that the Veteran could have had the same issues with a perfect cut made at the desired angle. The orthopedic surgeon could not determine if the bone cut was the cause of the Veteran’s developed instability issues. The orthopedic surgeon reported that there was no negligence or careless actions or decision by the January 2011 surgeon. In May 2019, the November 2019 orthopedic surgeon reported that he believed the majority, if not all, reasonable providers would have done the same as the January 2011 surgeon and followed the Veteran’s clinical course. The orthopedic surgeon did not believe that immediate revision of the left knee surgery was indicated based on the slight varus or malalignment of the left knee on postoperative radiographs. The orthopedic surgeon reported that the revision of the left knee was based on the Veteran’s post-operative clinical symptoms rather than specially the alignment of the knee prosthesis. The VA orthopedic surgeon’s opinion has not been questioned by any medical professional. While the Veteran testified that he feels VA committed negligence in his January 2011 left knee surgery, the Board must weigh this suggestion against the other evidence of record. Here, the VA orthopedic surgeon specifically addressed the questions upon which this case turned and provided sufficient rationale to support his opinion. As such, the Board finds the VA orthopedic surgeon’s opinion to be highly probative and is afforded the greatest weight. The disposition in this case turns on medical evidence, and specifically on medical opinion evidence. The determination of whether medical treatment was negligent, careless or the like, and whether that negligence or carelessness resulted in additional disability involves knowledge of the standards of medical practice, which is something clearly beyond the experience of a layperson. In short, the competent evidence of record is against the claim. Accordingly, the evidence fails to establish that the Veteran’s left knee surgical procedure performed at the Omaha, Nebraska VAMC in January 2011 did not involve 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. As such, the criteria for compensation pursuant to 38 U.S.C. § 1151 have not been met and the Veteran’s claim is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran filed service connection claims for a bilateral knee disorder, which were denied by a July 2009 rating decision. The Veteran asserts that his bilateral knee disorder is secondary to his January 2011 knee surgical procedure, which has not found to be eligible for compensation as discussed above. At the April 2017 Board hearing, he testified that he started having bilateral knee pain after the January 2011 knee surgery. The Veteran’s STRs show no complaints, treatment, or diagnosis for a knee disorder during his active service. The Veteran has not submitted any competent medical opinion of record suggesting that any chronic knee disorder might be related to his active service. As such, service connection on a direct basis is not warranted for any chronic knee disorder. Regarding secondary connection, as discussed more fully above, the Veteran’s is not entitled to compensation benefits due to the January 2011 left knee surgical procedure. As the Veteran’s left knee is not service connected, service connection on a secondary basis is not warranted. Consideration has been given to the Veteran’s assertion that his bilateral knee disorders were due to his active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), under the facts of this case, the matter of determining the etiology of a chronic knee disorder, falls outside the realm of the Veteran’s knowledge as a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, there is no evidence of the claimed knee disorders in service or until decades after service. To the extent the Veteran contends that he has continuously experienced knee symptoms since service, the Board finds this account to lack credibility, given the large gap between service and the first mention of any knee problems by the Veteran to any clinician whose records are on file. Accordingly, the criteria for service connection for a chronic left knee disorder and a chronic right knee disorder have not been met, and the Veteran’s claims are denied. REASONS FOR REMAND Regarding the service connection claims for bilateral lower extremity neuropathy, the Veteran asserted that his bilateral lower extremity was due to his January 2011 left knee surgery. However, the Veteran is service connected for diabetes. In June 2015, the Veteran’s physician noted symptoms that were likely diabetic neuropathy. In July 2015 and September 2015, his physician noted his lower extremity symptoms were likely due to low back pain or diabetic neuropathy. In November 2018, he reported neuropathic pain and tingling in his feet, which his physician reported sounded like neuropathy. As such, a remand is necessary to adjudicate the service connection claim for bilateral lower extremity neuropathy. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain all outstanding VA and/or private medical records that pertain to any lower extremity neuropathy. 2. Then, schedule the Veteran for a VA examination to assist in determining the nature and etiology of any bilateral lower neuropathy. The examiner should offer the following opinions: a. Is it at least as likely as not (50 percent or greater) that any lower extremity neuropathy was caused by the Veteran’s service-connected diabetes? Why or why not? b. Is it at least as likely as not (50 percent or greater) that any lower extremity neuropathy was aggravated (made worse) by the Veteran’s service-connected diabetes? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of any lower extremity neuropathy by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the lower extremity neuropathy. If such cannot be done, it should be explained why. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.