Citation Nr: 21014938 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-11 026A DATE: March 16, 2021 ORDER Entitlement to compensation for additional disabilities of the bilateral knees pursuant to 38 U.S.C. § 1151 § is denied. REMANDED Entitlement to compensation for additional disability of the bilateral shoulders pursuant to 38 U.S.C. § 1151 is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran developed additional disability in either knee as the result of careless or negligent medical treatment furnished to him by VA medical personnel. CONCLUSION OF LAW The criteria for compensation for additional disabilities of the bilateral knees pursuant to 38 U.S.C. § 1151 have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to June 1971. This case comes to the Board from an October 2011 decision of the Agency of Original Jurisdiction (AOJ). The Board remanded this case for further development in January 2018 and, most recently, in July 2019. Compensation for Additional Knee Disability under 38 U.S.C. § 1151 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; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in additional disability or death. Merely showing that a Veteran received care, treatment or examination and that the Veteran has an additional disability or died does not establish causation. 38 C.F.R. § 3.361(c)(1). 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, medical or surgical treatment, or examination caused the Veteran’s additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s or, in appropriate cases, the Veteran’s representative’s informed consent. 38 C.F.R. § 3.361(d)(1). Consent may be express or implied as set forth in 38 C.F.R. § 17.32(b). According to the Veteran, he developed additional disabilities in the knees during a magnetic resonance imaging (MRI) study at a VA medical center in April 2010. In a statement, dated March 2011, he wrote that he was in a reclined position inside the MRI machine when he began to feel uncomfortably hot and experienced a panic attack. He yelled to the technician to help him out of the machine. But because the technician had briefly left the room, there was no immediate response to the Veteran’s requests, so he “[tried] to extricate myself from this machine.” As he attempted to do this, according to the Veteran, “my chest kept hitting and binding [sic] on the underside of the top half of the machine. . .” After the technician returned to the room and helped him out of the machine, the Veteran returned to the machine and completed the scan. In his statement, the Veteran wrote that the, “only immediate effect of this incident was that I was very nervous at the time following the MRI. Within the next two days I began to have pain in my shoulders and forearms. My hips and knees were in pain due to me trying to pull myself free from the machine.” The Veteran explained that, “this incident aggravated my left knee that resulted in a total knee replacement [in November 2010].” It is clear, however, that there were significant disabilities in both of the Veteran’s knees before April 2010. In June 1971, he was granted service connection for a left knee disability, chondromalacia patella. Post-service medical records, dated September 1996, describe moderate osteoarthritis of both knees, with previous surgeries in both knees. The same note referred to “four surgeries on his right knee beginning in 1987. . .” In July 2006, the AOJ awarded service-connected compensation degenerative arthritis of the right knee. By the time of the April 2010 MRI, he was receiving a temporary 100 percent total rating for his right knee for a period of post-surgical convalescence, scheduled to become a rating of 30 percent in June 2010. For the left knee, the Veteran had also received a temporary 100 percent rating (between October 27, 2009 and January 1, 2010) after yet another surgery. After January 1, 2010, he was assigned a 20 percent rating for his left knee disability. The medical evidence from shortly before the April 2010 incident continued to indicate severe disabilities in both knees. The Veteran had knee x-rays in March 2009, which indicated “severe tricompartmental osteoarthritis of the right knee with surface irregularities medially and laterally, complete joint space obliteration laterally, subchrondral sclerosis, osteophyte formation, surface irregularities and severe patellofemoral disease. The left knee shows similar changes with surface medially and laterally and marked patellofemoral disease.” In April 2009, he had a total right knee arthroplasty. In June 2009, his treating orthopedic surgeon wrote that, “[the Veteran] has an endstage posttraumatic osteoarthropathy of the right knee and is now approximately eight weeks status post a total knee arthroplasty. He has problems on the contralateral side of a similar nature and is probably going to come to joint replacement. His symptoms were at the point that he was incapacitated. I would rate his early result as fair. He continues to have problems with pain and swelling.” He had another left knee surgery in October 2009. The operative report indicates a diagnosis of left knee degenerative arthritis with probable loose bodies and patellofemoral compression syndrome. The surgeon performed a left knee arthroscopy, debridement, partial meniscectomy, and chondroplasty of the medial and lateral femoral condyles. In December 2009, the surgeon examined the Veteran to assess his knee condition, noting that he “continues to complain of pain and instability with both knees. Due to the extent of his left knee arthritis and worsening discomfort, I am recommending bilateral hinged knee braces to provide medial and lateral stability.” Later in the same month, there was a VA joints examination. The examiner’s report described chronic internal pain both knees, which the Veteran described as “4 on a scale of 1 to 10” with episodes of greater pain during flare-ups. Two episodes, during which he experienced level 10 pain in the knees resulted in visits to the Emergency Room. The examiner’s diagnosis was “Degenerative joint disease bilateral knees with total replacement on right and recent orthoscopic surgery on the left with noted incapacitating episode during surgery and physical and x-ray findings.” In March 2010, the Veteran had another surgery on his left knee. The operative report described lateral patellar compression syndrome, with “catching and giving way” in the previous few weeks, “indicating he may have re-torn some of the cartilage or developed more fibrous scarring. He already has a total knee [replacement] on the other side, but has not done as well as he would have liked. It was done elsewhere and he is not ready to proceed with total knee. He would like to go in with another debridement and try to get a few more months or a few more years of pain relief with just an arthroscopy.” The operation was a left knee arthroscopy with extensive debridement of all three compartments and chondroplasty to the medial and lateral femoral condyle patellofemoral region, partial medial and lateral meniscectomy, and partial anterior synovectomy. The radiology report of the April 30, 2010 MRI is also part of the record. Described as a “whole body bone scan”, the findings concerning the joints and extremities were “consistent with previous history of multiple joint replacements.” The radiologist’s impression was “1. Unremarkable bone scan. 2. The right kidney appears to be hydronephrotic.” A May 2010 VA primary care note indicates that the Veteran told his physician that the bone scan was a “bad experience” and, when he was in the machine, he became claustrophobic and anxious. When describing the patient’s musculoskeletal condition, the physician noted that the Veteran continued to have degenerative joint disease in both knees with chronic pain. Chronic pain is also mentioned in the next primary care note, dated June 2010. In November 2010, the Veteran had a total left knee replacement operation. The “History” section of the operative report does not mention the incident in the MRI machine. There was another VA examination of the Veteran’s knees in February 2012. The examiner’s report describes symptoms similar to those already summarized above. The Veteran told the examiner that he had pain and stiffness in both knees. After walking 150 feet or more, he also experienced weakness. He was likely to have flare-ups after prolonged walking, bending, or climbing stairs. The examination report did not discuss the incident involving the MRI machine. In August 2012, the AOJ increased the disability ratings assigned to each knee from 30 percent to 60 percent. In August 2013, the Veteran submitted another statement, describing “continuous pain” in several joints, including the knees. He wrote that, “I feel these were not pre-existing conditions, but were caused by the incident [on] 4-30-2010.” To help decide this claim, the AOJ arranged a VA knees examination in June 2018. The examination questionnaire indicates bilateral knee joint arthritis. The medical history section of the report reviewed the Veteran’s description of the April 2010 incident and his previous knee replacement surgeries. At the time of the examination, the symptoms consisted of limited motion in both knees with pain. His pain was worse in the left knee than in the right. He also experienced episodes when the left knee would “lock” but this did not occur in the right knee. In the opinion of the June 2018 examiner, it was less likely than not that injuries associated with the April 2010 incident aggravated a pre-existing knee disability. To support this conclusion, the examiner emphasized medical records indicating that major knee surgeries were needed before the incident and that the results of the MRI scan itself, which occurred after the Veteran attempted to get out of the machine, were normal. The Board remanded the case in July 2019, apparently because the June 2018 examiner’s opinion is phrased in terms of aggravation rather than “additional disability” – the language used in 38 U.S.C. § 1151. The AOJ arranged a new examination in December 2019. The most recent examination questionnaire indicates status post knee replacement and knee strain bilaterally. The symptoms observed by the examiner are similar to those described above. In the examiner’s opinion, it was less likely than not that the Veteran had additional disability in either knee as a result of the April 2010 MRI incident. The examiner reviewed the Veteran’s long history of disability in both knee and emphasized the pre-April 2010 medical records suggesting that it was likely that left knee replacement surgery would be necessary in the future. The examiner also mentioned the short period of time in which the Veteran was in the MRI machine and that he did not tell the technician that he had injured his knee. Having reviewed the evidence, the Board finds that it is less likely than not that the Veteran has additional disability in either knee as a result of negligence or carelessness by VA medical personnel. For the purpose of this analysis, the Board assumes that the MRI technician was negligent by leaving the room when the Veteran was inside the machine. However, compensation under 38 U.S.C. § 1151 requires that the negligent acts or omissions cause additional disability and, in this case, the evidence weighs against a finding that the Veteran suffered additional disability in either knee as a result of injuries associated with his attempt to leave the MRI machine in April 2010. In reaching this conclusion, the Board finds that some aspects of the most recent opinion from the December 2019 examiner are not persuasive. For example, the fact that the Veteran was not in the machine for a long time does not necessarily mean that he could not have injured his knees in the machine. Trauma to the knees could conceivably be caused by swift contact with the sides of the machine as the Veteran panicked while trying to get out. That might have happened quickly. Moreover, the fact that the MRI technician did not note complaints of knee injury, while relevant, does not necessarily mean that the Veteran was not experiencing knee pain. The technician might have been embarrassed about leaving him in the room and chosen not to record the Veteran’s complaints. It is also possible that the Veteran experienced knee pain without telling the technician about it. Nevertheless, the rest of the December 2019 opinion, especially when considered together with the opinion of the June 2018 examiner and the other medical records, is persuasive evidence that whatever knee injuries the Veteran may have experienced inside the MRI machine did not result in additional disability of either knee for the purposes of 38 U.S.C. § 1151. The December 2019 examiner is correct that, well before April 2010 incident, the Veteran’s orthopedic surgeon suggested that it was likely that a left knee replacement surgery would eventually be needed. The March 2010 orthopedic surgery note, for example, suggests that a purpose of the most recent left knee surgery was to “try to get a few more months or a few more years of pain relief” before total left knee replacement. The June 2009 orthopedic surgery note also predicted that the Veteran would “probably” need a left knee replacement. This evidence undermines the Veteran’s suggestion that the November 2010 left knee replacement was necessary because of injuries he suffered in the MRI machine. Other records from the same orthopedic surgeon support this conclusion. In May 2010, the surgeon summarized the Veteran’s description of the April 2010 incident and wrote that he “developed some soreness in his back and shoulders but did not actually fall or damage anything. The scan was done after that. Exam: His knee is not bothering him today as much as his back and his shoulders are from pulling himself out of the scanner.” It is significant that, although the knees were a significant area of concern for the surgeon, who had performed the March 2010 operation, this note did not mention the knees except to say the knee “is not bothering him today as much as his back and shoulders. . .” In April 2011, the surgeon suggested that the April 2010 incident resulted in injury to the left rotator cuff. But the surgeon made no similar suggestions about either of the knees. As the June 2018 examiner explained, the results of the April 2010 MRI study support the Board’s conclusion. From the Veteran’s description of the incident, it is clear that he tried to escape the machine, and must have suffered any physical injuries associated with the panic attack, before the bone scan occurred. Yet the radiologist who interpreted the results – someone who, unlike the technician, had no professional incentive to minimize the extent of injuries – described an “unremarkable bone scan.” Finally, the Board has considered the Veteran’s statements. As a layperson, he is competent to provide information about symptoms he has personally experienced, including knee pain and, if he remembers, the approximate time when he began to experience knee pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). Yet at least with respect to his knee disabilities, the Veteran’s August 2013 statement that his condition was “not pre-existing, but [was] caused by the incident [on] 4-30-2010” is incredible. It is inconsistent with the earlier decisions to award service-connected disability compensation for both knees based on medical evidence of significant disabilities in both knees going back at least to the mid-1990s in the case of the right knee and back to his active duty service in the case of his left knee. The treatment records and examination reports describing the condition of the Veteran’s knees before April 2010 consistently indicate pain. In the case of a previously uninjured patient who had not experienced knee pain before, it might be reasonable to assign a high degree of confidence to the patient’s statements about when the pain began and how long it continued. But this Veteran, who has clearly experienced pain in both knees for decades, has provided no convincing support for a finding that his present knee pain must the result of injuries associated with the MRI machine incident (which were not detected by the bone scan) rather than his well-documented pre-existing disabilities in both knees. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of a claim for benefits. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The most probative evidence weighs against a finding that the Veteran has additional disability in either knee as a result of the negligence or carelessness of the VA personnel. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and the claim must be denied. REASONS FOR REMAND Although the Board regrets the need for further delay, it is necessary to remand the claim for compensation for additional disability of the shoulders for a new medical opinion. As noted, there was no medical opinion evidence suggesting that the April 2010 incident caused additional disability to the knees. For the shoulders, however, the Veteran’s treating orthopedic surgeon made the following statement in an April 2011 progress note : “I think he has torn his left [rotator cuff] and is going to wind up with surgery at some point. I do think it was very likely caused or at least aggravated by the panic attack experience in the MRI scanner.” Subsequent progress notes from the same surgeon indicate rotator cuff revision surgery to both the left and right sides in 2016. The December 2019 examiner provided an unfavorable opinion concerning the shoulder disability claim, which quotes the April 2011 surgeons’ note. But the examiner gave no explanation for rejecting the theory suggested by the surgeon – i.e., that the Veteran tore the rotator cuffs in his shoulders when he was in the MRI scanner. The July 2018 opinion indicates that the Veteran had a pre-existing injury to his left shoulder, described as a healed clavicle fracture and bone spur. The opinion acknowledges that he needed rotator cuff surgery approximately two years later, but the July 2018 examiner did not address the apparently favorable opinion of the treating orthopedic surgeon. Because neither opinion is adequate to decide the claim, the Board will remand the issue of compensation for additional disability of both shoulders with instructions to obtain a new medical opinion. The post-remand opinion should discuss the apparently favorable opinion of the Veteran’s orthopedic surgeon. The matters are REMANDED for the following action: 1. Send the claims file, including a copy of this REMAND, to a qualified medical professional for the purpose of preparing an opinion regarding the claim for compensation under 38 U.S.C. § 1151 for additional disability of the bilateral shoulders. If the examiner decides that a new in-person examination of the Veteran’s shoulders is needed before he or she can provide the requested opinion, a new in-person examination should be arranged. After reviewing the evidence and, if appropriate, completing a new in-person examination, the examiner must provide opinions as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran sustained additional disability of the shoulders as a result of VA hospital care, medical, or surgical treatment, including potential injuries to his shoulders in an MRI scanner on April 30, 2010? (b) Is it at least as likely as not (50 percent or greater probability) that the additional disability identified in the examiner’s response to subpart (a) was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of VA medical personnel, such as by leaving the Veteran unattended in the MRI scanner? 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. In explaining the medical reasons for his or her opinions, the examiner should address the following statement from a progress note from an orthopedic surgeon in private practice, dated April 2011: “he was in the MRI scanner a while back and had what sounds like a panic attack and no one was there to help him out and he climbed out hurting his shoulder in the process. I do feel his shoulder was significantly injured in that experience” as well as the same surgeon’s description of rotator cuff tears to both the right and left sides, which apparently required surgery in 2016. 2. The AOJ must ensure that the requested opinion complies with these instructions. If any report or opinion is insufficient, the AOJ should return the report for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.