Citation Nr: 21040429 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 10-36 958 DATE: July 3, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 38 U.S.C. § 1151 for a left knee disability is denied. FINDING OF FACT The Veteran's left knee disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA by not treating his left knee disorder during the time he was being treated for his right knee disorder. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a left knee disability resulting from claimed failure to diagnose and properly treat have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1973 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. As a preliminary matter, the Board reiterates that following the Board's March 2014 remand, in a July 2016 rating decision, the RO granted service connection for a left knee disorder, effective April 18, 2012. In the July 2017 remand, the Board concluded, however, that in light of the grant of service connection for a left knee disorder, the Board need not reach a decision on the merits of the claim for compensation for a left knee disorder under 38 U.S.C.A. § 1151 from April 18, 2012. However, the Board determined that the Veteran's claim of entitlement to VA compensation under 38 U.S.C.A. § 1151 prior to April 18, 2012, was not moot. The Board subsequently remanded this issue for further development in January 2019 and in December 2020. 1. Entitlement to compensation under 38 U.S.C.38 U.S.C. § 1151 for a left knee disability. The Veteran contends that his left knee disability is due to the failure of VA to properly diagnose and treat the condition. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. 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 upon which the claim is based to the veteran's condition after such care, treatment, or examination is completed. To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event which directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death, and that (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, medical or surgical treatment, or examination without the veteran's, or in appropriate cases, his representative's, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Pursuant to 38 U.S.C. § 1151, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed.Cir.2010). The Veteran was afforded a VA examination in June 1982. The Veteran reported that his knees hurt all of the time. X-rays revealed no evidence of fracture, other bony or soft tissue abnormality. He reported hurting both of his knees playing football at Camp Pendleton for which he was treated in an outpatient setting. No tenderness upon palpation was noted, however, the left knee was described as unstable medially and laterally, and the distal segment of the left knee was noted as moving medially by 15 degrees and laterally by 15 degrees. It was then noted that the left knee "feels as if the left knee is going out of place when this is tested." It was then noted that the left drawer test is positive, and the distal segment of the left knee moves forward by half an inch. Moderate crepitation was noted. Active range of motion was within normal limits. Left knee laxity, medial and lateral collateral ligaments, and laxity, anterior cruciate ligament, were noted. In a December 2009 statement, the Veteran stated that while he lived in Chicago he was given several MRIs and several shots but no doctor at the VAMC told him that his "left knee was blown out" and that he was "walking bone-on-bone." He further stated that a doctor at the VAMC in Tulsa ran a test on his left knee and discovered that he needed a total left knee replacement. He further stated that the doctor called the Chicago VAMC who told him that there was no record of him being treated there. He then stated that the doctor in Tulsa, Dr. Price, told him that because no doctor had "caught it in time" it "could have been prevented." In a March 2010 statement, the Veteran stated that he had been treated by VA doctors since June 2002 when he had his right knee replacement. He then stated that he moved to Chicago in January 2005 and lived there before moving to Tulsa in June 2009. He then stated that he had seen no outside doctors. He stated that while in Chicago he was given shots in his left knee. A March 2008 VA treatment record notes the Veteran had left knee degenerative joint disease and pain and underwent arthroscopy in September 2007. "No previous injections into [his] left knee" were noted. Upon examination, patellofemoral crepitus, medial joint line tenderness, and pain with range of motion were noted. A March 2008 x-ray noted that the joint spaces of the medial and lateral compartments of he left knee were preserved, as well as narrowing of the patellofemoral joint with bone spur formation consistent with osteoarthritis. Left knee patellofemoral degenerative joint disease was diagnosed and was given a left knee steroid injection. Veteran claims that Dr. London Price stated it was a medical oversight and that his doctors should have discovered the problem before his knee became bone-on-bone. The Veteran was afforded a VA joints examination in May 2011. He denied any history of trauma to his left knee while in service and reported having pain in his left knee from favoring it due to his right knee problem. He then stated that he started having more problems while in Chicago and the knee gave out and dropped in while walking, for which he received a shot in the knee, and eventually a total left knee replacement in 2009. The VA examiner opined that his left knee condition was more likely related to the normal wear and tear process due to his occupation in road construction work and possible injuries "as he was involved in multiple car accidents and/or other incidents after he was discharged from service." An addendum VA opinion was obtained in June 2016. The examiner reviewed the Veteran's claims file and opined that the treatment the Veteran received at the Long Beach VAMC and Jesse Brown VAMC did not result in additional disability due to carelessness, negligence, lack of proper skills, error in judgment, or similar instance of fault on the part of the VA. The examiner noted that the Veteran's left knee condition surfaced with complaints as early as January 1982 on a compensation and pension examination and culminating with treatment in 2008. It was then noted that the Veteran had undergone arthroscopy in September 2007 before arriving at Jesse Brown VAMC and that the first mention of left knee complaints that was in February 2008. It was then noted that within a year of that the Veteran moved to Oklahoma where he received a left knee total arthroplasty in September. The examiner opined that the left knee disability was less likely as not caused and/or worsened as a result of the VA treatment at issue, that there is no additional disability due to carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault on the part of the attending VA personnel, there is no additional disability that could not have reasonably been foreseen by a reasonable healthcare provider, and that it is less likely as not that there was a failure on the part of the VA to timely diagnose and/or properly treat the claimed disease/disability that allowed the disease/disability to continue to progress. VA obtained a medical opinion in January 2018. The contract examiner reviewed the Veteran's claims file and opined that it contains no evidence to suggest that the Veteran's left knee total arthroplasty was due to carelessness, negligence, lack of proper skill or judgment on the part of the VA healthcare system or VA surgical attendings. It was then noted that the earliest note involving the Veteran's left knee was from January 1982 and that he underwent left knee arthroscopy in September 2007, followed by initial treatment at Jesse Brown VAMC. It was further noted that after moving to Oklahoma he underwent total left knee arthroplasty at the Oklahoma City VAMC in September 2009. The examiner stated that there is no evidence of lengthy delay from the initial referral to the initial treatment, nor was there substantial delay prior to the surgery (after the initial presentation) despite the Veteran moving. In an April 2018 addendum opinion, a VA examiner opined that it is less than likely that the Veteran's total left knee arthroplasty was due to carelessness, negligence or lack or proper skill, error in judgment, or similar instance of fault on the part of the VA by not treating his left knee disorder during the time when he was being treated for his right knee disorder. The examiner noted that the lack of any documentation indicating the Veteran's left knee was of any severity to have merited intervention more than what was already documented, and the standards of care would have prohibited intervention more than what was already documented, especially in light of the severity of the right knee. The examiner then stated that there is no documentation to support the left knee arthroplasty was in any way performed due to carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA by not treating the left knee disorder during the time the Veteran's more severe right knee was being treated. The examiner stated that the progression of the condition of the left knee was not related to VA care but the progression of degenerative arthritis inherent in the disease itself. The examiner then said that there was no indication to treat the left knee aggressively at the same time as the right knee arthroplasty, that there was a proper diagnosis and treatment of the left knee, and that the fact that both of the Veteran's knees had an ongoing degenerative arthritis did not reflect that the left knee should have been treated as aggressively as the right knee. The Veteran was afforded a VA contract examination in July 2020. The examiner opined that it is less likely than not that his left knee condition was caused by VA treatment, noting that he did not complain of left knee pain until 1982 and then began to receive treatment in 2002. The examiner opined that the left knee disability did not result from carelessness, negligence, or lack of skill of the VA personnel, noting that the preop history and physical for the total knee replacement does not indicate negligence on behalf of the VA. The examiner then noted that the Veteran refused to discuss his medical history and told the contract examiner that it was their problem to look through the file. The contract examiner again referenced the Veteran's preop history and physical for the left knee replacement and then opined that it was less likely than not that his disability arose from VA failing to diagnose or properly treat the Veteran. VA obtained a medical opinion in December 2020. A VA examiner reviewed the claims file and opined that it is less than likely that the Veteran's total left knee arthroplasty was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA by not treating his left knee disorder during the time he was being treated for his right knee disorder. The examiner noted the lack of any documentation indicating the Veteran's left knee was of any severity to have merited intervention more than what was already documented and also noted that the standards of care would have prohibited intervention more than what was already documented to surgically or invasively treat the left knee, "especially in light of the severity of the right knee." The examiner then stated that there is no documentation to support the left knee arthroplasty was in any way performed due to carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA by not treating the left knee disorder during the time his more severe right knee was being treated. The examiner then stated that the progression of the condition of his left knee was not related to VA care, but due to the progression of the degenerative arthritis inherent in the disease itself. The examiner stated that there was a proper diagnosis and treatment of the left knee documented and the fact that both of his knees had ongoing degenerative arthritis did not reflect that the left knee should have commenced more aggressively at the same time that the right knee was being replaced. The examiner noted that the bone on bone reference in the VA treatment records was pertaining to his right knee and not the left. The examiner stated that they interpret that the QTC physiatrist was considering that the left knee pain began in 1982 and that treatment began only in 2002 and that this means the condition did not begin in service. The examiner then concluded that the preoperative history and physical performed in September 2009 does not provide the support that there was any negligence, substandard faulty, or delay in care on the part of VA that caused, worsened or permanently aggravated any left knee condition. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran is certainly competent to describe the symptoms he experienced and to provide a history of the progression of his left knee disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in a worsening of his left knee disability. The Board also notes that the Veteran is competent to repeat what a doctor told him. Jandreau. In this instance, that a Dr. Landon Price stated that his left knee was bone on bone and that it was the fault of VA. However, the Board notes that this statement is not corroborated by any contemporaneous treatment record. As such, the Board finds the Veteran's statements to be of little probative value. Here, repeated VA medical opinions have stated that the Veteran's left knee disability, including his left knee replacement, is the result of the natural progression of his degenerative joint disease, and not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA by not treating his left knee disorder during the time he was being treated for his right knee disorder. The Board finds that the VA opinions, in particular, the December 2020 opinion, have been based on a careful review of the record and, as such, are of significant probative value. Based on the above, the Board finds that the preponderance of the competent evidence of record is against a finding that any VA medical care provider was careless, negligent, lacked proper skill, erred in judgment or had other fault that ultimately resulted in the Veteran having an additional disability. As such, compensation pursuant to 38 U.S.C. § 1151 for a left knee disability is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.