Citation Nr: 21022488 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 07-06 391 DATE: April 15, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional left leg disability due to surgeries at a non-VA facility in September 2005 and October 2006 is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional left leg disability due to VA’s alleged failure to provide necessary rehabilitative treatment following the Veteran’s March 2005 injury and subsequent related VA and non-VA treatment is denied. FINDINGS OF FACT 1. The Veteran’s September 2005 and October 2006 surgeries were performed at a non-VA facility under a contract made with VA pursuant to 38 U.S.C. § 1703. 2. The Veteran does not have an additional left leg disability due to VA’s alleged failure to provide necessary rehabilitative treatment following the Veteran’s March 2005 injury and subsequent related VA and non-VA treatment. CONCLUSIONS OF LAW 1. The criteria for compensation pursuant to 38 U.S.C. § 1151 for additional left leg disability due to surgeries at a non-VA facility in September 2005 and October 2006 have not been met. 38 U.S.C. §§ 1151, 1703; 38 C.F.R. § 3.361. 2. The criteria for compensation pursuant to 38 U.S.C. § 1151 for additional left leg disability due to VA’s alleged failure to provide necessary rehabilitative treatment following the Veteran’s March 2005 injury and subsequent related VA and non-VA treatment have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1971 to March 1973. In September 2011, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). This case was previously before the Board of Veterans’ Appeals (Board) in October 2020, November 2017, and in May 2012. At those times, the Board remanded the Veteran’s claim for further development. Although this appeal had previously been categorized as one issue, the Board has separated the issues as above to better reflect the Veteran’s contentions. Compensation Pursuant to 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 that additional disability or death 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 and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and the proximate cause of the disability or death was: (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). To obtain compensation, a claimant must show: (1) a qualifying additional disability, (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the Veteran’s informed consent. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d)(1). The Veteran seeks compensation for additional left leg disability disease that he believes resulted from VA treatment. Specifically, he asserts two ways in which VA caused him to have additional disability: 2) surgeries performed on his left leg by Dr. H, who happened to be a VA employee, at a non-VA treatment facility left him with additional left leg disability, to include a left foot drop; and 1) his left leg would have made a better recovery had VA not failed to provide timely rehabilitative treatment and/or failed to continue it following treatment rendered subsequent to his March 2005 injury. By way of background, according to the Veteran’s Board testimony and medical records in the claims file, the Veteran, a Pennsylvania resident, was injured in a major snow-mobile accident in March 2005 in Utah. His left hip was dislocated but relocated by emergency personnel on scene, and he tore ligaments in his left knee. He initially underwent treatment in Utah at a non-VA facility following the accident. Once he arrived at this facility, he was examined and sent to a VA hospital in Salt Lake City, Utah, for surgery. He remained in this hospital from around March 10, 2005, to the beginning of May. He underwent physical therapy (PT) in early May at the VA hospital in Salt Lake and at the non-VA facility where he initially treated. In early May 2005, the Veteran returned home to Pennsylvania and underwent PT treatment at a non-VA facility which had been authorized by the Salt Lake VA prior to the Veteran having left Utah. An August 2005 VA treatment note stated that the Veteran had hit a wall with his PT treatment, and needed additional surgery to increase his left knee range of motion (ROM). In September 2005, VA authorized him to undergo additional surgery at an outside hospital, Pennsylvania Hospital, and, that month, he underwent an arthroscopic surgery to his left knee with nerve release at the non-VA hospital. In October 2005, the Veteran developed cellulitis and was treated at the same outside hospital for the infection. On October 24, 2005, the Veteran no-showed to a VA Medical Center (VAMC) PT appointment, but presented to the VAMC in rehabilitative medicine requesting approval for PT at the outside PT clinic. In December 15, 2005, VA ordered PT at the outside location, 3 time a week for 3 months. The Veteran filed this claim for benefits pursuant to 38 U.S.C. § 1151 in late December 2005, initially alleging only that he suffered additional disability due to VA’s failure to provide sufficient PT. In October 2006, the Veteran underwent another surgery at Pennsylvania Hospital for a screw removal and manipulation in his left knee. He participated in further PT after such surgery, with good recovery of his left knee ROM. The details of the PT timelines during the entire treatment period are difficult to follow, but have been sufficiently addressed by the VA medical opinions in evaluating the Veteran’s claims. Additional Disability Resulting from Surgery Performed at a non-VA Facility in September 2005 and October 2006 The Board notes, as an initial matter, the Veteran’s claim for 38 U.S.C. § 1151 compensation for surgery performed by a dually employed VA provider at a non-VA facility fails as a matter of law. A claim for compensation under 38 U.S.C. § 1151 must, as a threshold matter, be based on treatment or care “provided by VA,” which is further defined as services that were either provided by a VA employee or performed in a VA facility. 38 U.S.C. § 1151 (a)(1). The implementing regulation, 38 C.F.R. § 3.36 (f), further provides that treatment or care furnished either (a) under a contract made under 38 U.S.C. § 1703 (authorizing VA to contract with a non-VA provider for medical service to veterans when VA is not capable of furnishing the care required) or (b) under 38 U.S.C. § 8153 (concerning sharing of health-care resources) in a facility over which the Secretary does not have direct jurisdiction are not treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151 (a)(1). Also, inpatient care under a contract made pursuant to 38 U.S.C. § 1703 is authorized using VA Form 10-7078. See VA Form 10-1078. Consequently, in this case, even if Dr. H. is a VA employee, if the surgery at issue was performed under a contract made pursuant to 38 U.S.C. § 1703, or provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction, the surgery is not considered care furnished by a VA employee for the purpose of receiving compensation under 38 U.S.C. § 1151. Here, the Veteran’s VA treatment records show that his care at the non-VA facility, Pennsylvania Hospital, was care VA authorized via VA Forms 10-1078. Thus, surgeries performed on the Veteran at this hospital were done pursuant to a contract for care made under 38 U.S.C. § 1703, and cannot be considered treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151. 38 C.F.R. § 3.361(f). As such, the fact that Dr. H., the doctor who performed surgery on the Veteran at this hospital, may have also been a VA treatment provider at the time of the surgery is irrelevant, and compensation under 38 U.S.C. § 1151 is not available for any asserted additional disability from such procedures as a matter of law. In light of the above, compensation under 38 U.S.C. § 1151 for the May 2005 and October 2006 surgeries the Veteran underwent at Pennsylvania Hospital is not warranted. Additional Disability Resulting from VA’s Alleged Failure to Provide Necessary Treatment As to the Veteran’s claim for 38 U.S.C. § 1151 compensation for additional disability resulting from VA’s failure to authorize necessary treatment, including PT, the Board finds that this claim is not supported by the evidence of record. A VA examination was performed in September 2008, at which time the examiner was asked to opine on this issue. The examiner noted that he lacked the records needed to make a fully informed determination. A second VA examination was performed in April 2010, with an opinion following in May 2010. At this time, the Veteran’s only contention was that additional disability resulted from VA’s failure to authorize PT. The examiner reviewed the record and found no basis to support the Veteran having suffered any harm from a lack of authorization of outside PT during the times covered from the injury to the then-present, based in large part on how well he had done for such an extremely bad left leg injury. The examiner also noted that the Veteran filed his claim asserting such harm due to a lack of PT authorization in December 2005, and assumed the Veteran’s claim referred to events which occurred prior to that date. As such, he made clear that he was also unable to find any harm sustained by the Veteran from a lack of PT prior to December 2005. The Veteran presented before a hearing with the Board in September 2011. The Veteran’s representative clarified that the Veteran was alleging two VA errors which caused additional disability: 1) additional disability which resulted when VA terminated all services to the Veteran, with the disability being the denial of the opportunity for additional improvement that could have been made with the left leg injury and disability; and 2) permanent damage which resulted from surgery on his left leg where a nerve was cut that should not have been. The representative noted that the second error had not been well-documented in the claims file prior to this date. The Veteran provided detailed testimony regarding the history of his VA treatment as he recalled it related to this claim, and why he believed VA failed to provide necessary treatment. The Veteran submitted a March 2012 independent medical evaluation written by S.M.T., MD, to address this matter. She reviewed the Veteran’s medical treatment history and noted that there was a gap in PT from October 2006 to January 2008, and no PT approved for the left knee since December 2009. This lack of PT, coupled with the Veteran’s report of VA having denied left knee reconstruction surgery (noted in the factual background of the opinion as being evidenced only in a PT note, per the Veteran stating that a Dr. M. had said the left knee could be constructed), caused additional disability in the Veteran’s left leg. Specifically, the delay/gap in PT caused the Veteran to develop contracture of the left tibiotalar joint, Achilles’ tendon, flexor hallucis and toe flexors, which negatively impacted his ambulation and caused deterioration to his left lower extremity. No explanation was provided as to how this provider reached this conclusion. A VA opinion was obtained in July 2015 to address the opinion rendered by the March 2012 independent medical examiner. The examiner concluded that there was no clear evidence that the Veteran suffered additional disability or worsened disability in his left leg as a result of the VA treatment identified by the March 2012 examiner as having caused additional disability. Another VA opinion was obtained in May 2017. The VA examiner provided a detailed summary of the treatment at issue and concluded that the Veteran’s disability relative to his left knee was due to the snowmobile accident and not VA treatment. The examiner further explained that the Veteran is diabetic and had a severe soft tissue injury to his left knee and subsequently developed a foot drop associated with it, although the precise time of the development was unknown. He further noted that he was unable to tell whether the foot drop was present upon the initial injury, but that the Veteran did develop an infection after decompression of the peroneal nerve. The examiner also concluded that there was no evidence of carelessness or negligence or lack of treatment by VA in treating the Veteran. Further, the Veteran’s disability was not unexpected given the nature of his injury and having had pre-existing diabetes mellitus. Also, there was no indication of a failure to timely diagnose or properly treat the Veteran’s condition by VA. In an April 2019 VA addendum opinion, the examiner found that the Veteran had not sustained any additional disability, whether neurological or otherwise, as a result of VA’s failure to provide timely rehabilitative treatment, failure to continue rehabilitative treatment, or from the two surgeries addressed in the other issue discussed above. The examiner explained how the Veteran received PT contracted by VA when he returned home to Pennsylvania following his 2005 accident. He reached a plateau in his recovery, and further surgery was needed in September 2005 for nerve release. In October 2005, he no-showed for PT, showed up the same day for a rehab medicine appointment requesting fee-for-service (contract) PT, and was noted to be doing self-directed TheraBand exercises. Records were silent for care for November 2005, but the Veteran filed his claim for 38 U.S.C. § 1151 compensation in December 2005, claiming his PT was refused by VA, causing an increase in his left leg disability requiring further surgery to correct. The examiner explained that VA attempted to provide the Veteran PT care, but he did not attend. There was no evidence that VA had refused to provide the Veteran necessary PT. Although the Veteran had further surgery, such was needed as he had not yet had his ACL repaired, but there was no evidence that VA’s lack of care caused his disability to progress. Following the Veteran’s October 2006 screw removal surgery, the examiner also explained that he underwent subsequent PT which showed good recovery of left knee range of motion. A November 2013 treatment note showed that his ROM had increased from its pre-surgery state of 0 to 85 degrees to 0 to 110 degrees. Thus, it was less likely than not that the Veteran sustained any additional disability, whether neurological or otherwise, as a result of the alleged failure by VA to provide timely rehabilitative treatment or failure by VA to continue rehabilitative treatment. VA sought another medical opinion again to address the additional disabilities mentioned by the March 2012 private medical opinion (left leg contractures) and the May 2017 VA examiner (left foot drop) and the assertion they were due to VA treatment or failure to provide proper treatment. An addendum opinion was obtained in August 2019 from the same examiner who had provided the April 2019 addendum opinion. She opined that it was less likely than not that the Veteran’s left leg would have made a better recovery had it not been for VA’s failure to provide timely rehabilitative treatment and/or failure to continue it. The examiner gave a two-page, in-depth review of the Veteran’s medical treatment in her rationale, and then summarized that the Veteran had suffered significant trauma to his knee following the snowmobile accident in March 2005. This accident, alone, put his peroneal nerve at risk, and he had mild deficits in sensation following his first surgery in Utah, but they were noted to be intact by March 31, 2005. After his second surgery at Pennsylvania Hospital in September 2005 with post-operative infection, his symptoms worsened significantly, putting him at risk of additional injury following surgery in the same area. His most recent EMG, however, showed that he had no ongoing compression, but had moderate sensory motor polyneuropathy due to his diabetes mellitus. The examiner further explained that, although the Veteran had a lapse in PT, PT had been ordered by VA during this time. However, he did not want to travel and missed appointments. Orthopedic foot devices had been ordered, but the Veteran did not follow through. Further, there was no medical evidence of worsening of contractures [which were already present] as due to this interruption of care. As such, the examiner found there was insufficient evidence to find that the Veteran’s left leg would have made a better recovery had it not been for VA’s failure to provide timely rehabilitative treatment and/or failure to continue it. Pursuant to the October 2020 Board Remand, another VA medical opinion was obtained in this matter. In her detailed discussion of relevant medical evidence, the examiner noted that there was a gap in PT from October 2006 to January 2008. However, VA approved PT in April 2007, despite the Veteran claiming he was not aware of this approval. She also noted that, contrary to what had been reported in the March 2012 private opinion, a September 2012 medical treatment note showed that Dr. M. did not recommend any further surgery for the Veteran’s left knee. The examiner concluded that VA diagnoses and treatment were appropriate and timely, followed accepted appropriate protocols, and met the standard of care in this case. It was less likely than not that any claimed additional disability was caused by or became worse as a result of VA treatment; that additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; and/or that failure on the part of VA to timely diagnose and/or properly treat any claimed disease or disability allowed it to continue to progress. As specifically to the issue of whether any additional left leg disability resulted from an asserted lapse in PT, as identified in the record and by the March 2012 private provider, the examiner noted that the record did not conclusively establish that the Veteran did not have access to PT in the timeframe from October 2006 to January 2008. There was also no evidence VA was aware of any lapse in PT during this time. There were actually notations in the VA treatment records that PT was approved in 2007 and 2008 to be done at a VA facility. Thus, the Veteran could have scheduled and discussed PT treatment, but there is no documentation that he did so. The examiner also noted that the file contains a 2010 medical opinion by a non-VA facility orthopedic provider treating the Veteran’s left knee, and the opinion did not voice any concerns about a lack of PT. As such, she concluded that VA provided the Veteran with PT, although he may not have used it, and no providers during the time in question, whether VA or non-VA, mentioned any concerns or awareness of a lapse in PT. The examiner addressed the March 2012 private opinion and stated that no additional left leg disability was actually incurred from the lapse in PT that this opinion noted. As far as the 2012 opinion stated contractures were caused by a lapse in PT, the examiner found to the contrary—that the record does not show that contractures developed, as there are other orthopedic examinations of record before 2012 and after which do not mention any such contractures. She also noted that a May 2011 podiatry examination noted that the Veteran had bilateral hammertoes, which would indicate toe flexor contractures, but the note stated they were mild and flexible, which would not alter the Veteran’s gait. Thus, the Veteran does not have gait-altering contractures of the left ankle or foot which would contribute to additional knee disability. The examiner also pointed out that the contention in the 2012 opinion that the Veteran needed left knee reconstruction, and VA failed to approve it, leading to further disability, was actually contradicted by a reference to a non-VA facility September 2012 orthopedic surgeon finding that no additional left knee surgery was needed. As such, she concluded that the March 2012 opinion’s assertion that the Veteran suffered additional left knee disability due to lapse in PT treatment is not supported by the record. Rather, his left knee function overall had improved after VA treatment when compared to its pre-operative status following the initial March 2005 injury. She acknowledged that the Veteran developed a left peroneal neuropathy following March 2005 left knee repair, but such a condition is a known foreseeable complication of such an injury the Veteran had incurred and/or the left knee repair surgery. The worsening of this neuropathy from September 2005 to 2009 was due to the Veteran’s diabetes mellitus, not any ongoing compression. Regardless, even considering the worsening of the neuropathy, the Veteran’s left knee improved after the initial March 2005 procedure and maintained further improvement after the September 2005 procedure, with an overall improved ROM. In light of the above, the overwhelming weight of the medical evidence is against the Veteran’s claim. In reaching this decision, the Board acknowledges the opinion rendered in March 2012 in favor of the Veteran’s claim. However, the rest of the medical evidence, as detailed above, does more than refute any indication of a valid claim that the opinion raised. While the Board does not doubt that the Veteran is sincere in his belief that he has an additional left leg disability related to VA treatment he received, he is not competent to identify such an additional disability. The issue is medically complex, as it requires expert medical knowledge of the system involved. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Board gives more probative weight to the overwhelming competent medical evidence against his claim than to the lay assertions of record. Without competent evidence of a current left leg disability caused or aggravated by VA treatment, or lack thereof, compensation cannot be awarded for any such disorder. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability, there can be no valid claim.”). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.