Citation Nr: 21028954 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-36 857 DATE: May 12, 2021 ORDER Entitlement to compensation under 38 C.F.R. § 1151 for left knee disability is denied. Entitlement to service connection for a low back disability as secondary to left knee condition is denied. Entitlement to service connection for a left hip disability as secondary to left knee condition is denied. FINDINGS OF FACT 1. The evidence demonstrates that the Veteran developed no additional disability as a result of VA treatment. 2. The Veteran's low back disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. 3. The Veteran's left hip disability is not secondary to a service-connected disability and is not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 C.F.R. § 1151 for left knee disability have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for service connection for a low back disability due to service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a left hip disability due to service-connected disease or injury are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) from a June 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied these claims in a March 2018 decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims, which remanded the claims back to the Board for additional consideration in July 2019. In January 2020 the Board reopened the claim for entitlement to service connection under 38 C.F.R. § 1151 and remanded all three claims on the merits for further development, to include providing VA examinations, updating VA treatment records, and obtaining documentation from Elmendorf AFB Hospital. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1151 CLAIM Entitlement to compensation under 38 C.F.R. § 1151 for left knee disability The Veteran claims additional left knee disability as a result of knee surgery that was recommended by a VA doctor. He contends he was going to have the surgery at VA but that his doctor had a conflict and that VA asked if he would have a problem getting the surgery at the Air Force Base with another doctor. He asserts he was told that the surgery would be about 45 minutes and instead took four hours. He asserts that he has additional disability as a result of his meniscus being removed during this surgery. He further asserts that the removal of his meniscus exceeded the scope of his consent, which was limited to a diagnostic arthroscopy and removal of a loose body. VA law provides that 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. 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). To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after the care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the applicable causation requirements, either actual causation or proximate causation for continuance or natural progress due to VA failure to timely diagnose and properly treat a disease or injury. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the 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 cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). With regard to carelessness or negligence, 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 was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; 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 hospital care or medical or surgical 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). With regard to reasonable foreseeability, whether the proximate cause of a veteran's additional disability or death 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 that 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. See 38 C.F.R. § 3.361(d)(2). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The Court has held that "the failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." McNair v. Shinseki, 25 Vet. App. 98, 107 (2013). VA regulations provide that hospital care or medical services furnished under a contract with non-Department facilities pursuant to the provisions of 38 U.S.C. § 1703 are not considered treatment by a VA employee or in a VA facility. See 38 C.F.R. § 3.361(f). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recognized that a claimant may succeed under a referral theory pursuant to 38 U.S.C. § 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of § 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151(a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that the VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Federal Circuit further held that § 1151(a)(1)(B) requires that the unforeseeable event proximately cause the additional disability. "As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability." Ollis, 857 F.3d at 1346. As the Veteran contends that his additional disability was caused by surgery that was provided by a non-VA provider at the behest of VA, this claim must be reviewed in light of the holding in Ollis. However, as a threshold matter, the Board must first determine whether the April 2007 surgery resulted in additional disability as claimed by the Veteran. To do so, the Board must compare the Veteran's condition before and after the surgery. 38 C.F.R. § 3.361(b). An April 1993 x-ray of the left knee showed osteoarthritis in unspecified area(s). A November 2006 x-ray showed moderate to borderline severe joint space narrowing of the medial compartment of the left knee. Notes from this office visit indicate the Veteran had chronic left knee pain from known posttraumatic osteoarthritis, though the Veteran denied laxity, giving way or locking. In April 2007 the Veteran had left knee arthroscopy with loose body removal and lateral meniscal debridement. The operation reports the procedure was indicated for pain and locking of the knee. The report also indicated that consent was obtained for the procedure, though it did not provide details as to the scope of the consent. The pre-operative diagnosis was left knee loose body, and the post-operative diagnosis was left knee loose body with lateral meniscal tear. The operation report further indicated that the medial compartment was without pathology and there were no complications. The operation report did not indicate the how long the surgery took. After surgery, the Veteran complained of ongoing pain and was shown to have medial compartment degenerative changes in a July 2007 x-ray. The report indicated that there appeared to have been little progression of degenerative change of the lateral compartment and of the patellofemoral joint, and that there was mild degenerative change medially as well. In October 2007 the Veteran reported symptoms since the surgery of left knee pain referred to his calf, thigh, and hip, and lateral left foot numbness while walking. He continued to report left knee pain and was ordered a left knee brace in April 2008. In October 2008 the Veteran reported increased pain with walking and paresthesias of his lower leg and foot since the surgery. The Veteran's physician indicated that severe degenerative joint disease of the left lateral knee was apparent prior to the recent knee surgery, and that an MRI of the left knee had not been done prior to the 2007 surgery. The Veteran was advised to follow-up with the surgeon regarding his symptoms. See October 2008 VA treatment records. Thereafter, the Veteran continued treatment with the VA for various medical concerns, but treatment records do not reflect reports of knee symptoms again until late 2012. At that time, he had another x-ray which showed moderately severe tricompartmental degenerative change, worse since the last imaging in file. See September 2012 VA treatment records. An MRI in November 2012 showed surgical changes and osteoarthritis with severe cartilage loss of the lateral joint compartment. A December 2012 VA orthopedic surgery consultation showed range of motion to 120 degrees, crepitus, tenderness to palpation over the lateral joint line, no instability, and normal sensation and strength. In April 2013 the Veteran had a total knee replacement. The Veteran was afforded a VA examination in March 2021. The examiner opined that it is less likely than not that the left knee arthroscopy resulted in additional disability. The rationale was that the Veteran had osteoarthritis in the knee prior to the surgery with a several year history of worsening knee pain, catching, and worsening pain with activity. The April 2007 surgery was performed without incident. Though the Veteran reported pain since the arthroscopy in January 2008, physical examination at that time was normal. After April 2008, the record contains no reports of knee problems until his consultation for a total knee replacement in December 2012. This consultation is notable for left knee end stage osteoarthritis. Thus, though the Veteran reported pain after the surgery, medical records show no progression of disability after the arthroscopy. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez, 22 Vet. App. 295 (2008). Here, the March 2021 opinion was provided by a VA medical professional who possesses the necessary education, training, and expertise to provide the requested opinions. Additionally, the opinion is shown to have been based on a review of the Veteran's record and is accompanied by a sufficient explanation as to why the Veteran did not experience additional disability after the April 2007 arthroscopy and meniscal debridement. Furthermore, there is no competing medical opinion of record. The Board thus finds that the March 2021 opinion is dispositive of the issue at hand. As the preponderance of the evidence indicates there is no evidence of additional disability after the April 2007 surgery, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). SERVICE CONNECTION 1. Entitlement to service connection for a low back disability as secondary to left knee condition 2. Entitlement to service connection for a left hip disability as secondary to left knee condition The Veteran contends that his left hip and low back disability are due to claimed additional disability caused by his left knee surgery. Specifically, the Veteran asserts that the removal of his meniscus caused him to walk with a limp, which resulted in the left hip and low back disabilities. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran is diagnosed with chronic degenerative changes of the lower lumbar spine, bilateral hip osteoarthritis, and a left hip labrum tear. See July 2013 VA treatment records. Thus, he has current low back and left hip disabilities. Though the Veteran was not afforded a VA examination regarding his hip and low back claims, on these facts, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion because the Veteran is not service connected for a left knee disability. Further, the Veteran does not contend his hip or low back disabilities are directly or otherwise due to service. Absent evidence that indicates that the Veteran's hip and low back disabilities are related to an injury or symptoms in service, the Board finds that a VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the Veteran's claim for entitlement to service connection for a left hip and low back disability have been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that, while the Veteran has current left hip and low back disabilities, the preponderance of the evidence is against finding that the Veteran's disabilities are proximately due to or the result of, or aggravated beyond their natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, 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.