Citation Nr: 22014582 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-05 461A DATE: March 14, 2022 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for residuals of bilateral total knee replacements is denied. FINDING OF FACT The weight of the evidence does not establish that residuals of bilateral total knee replacements resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of bilateral total knee replacements have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1975 to January 1977. This claim comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. The Veteran testified before the undersigned Veterans Law Judge in November 2021. A copy of the transcript is of record. 38 U.S.C. § 1151 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of bilateral total knee replacements due to VA treatment. In order for the Veteran to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran, the claim for compensation under 38 U.S.C. § 1151 must be denied. 38 U.S.C. § 1151 provides that 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 or death were service connected. For the purposes of this section, 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: (1) 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 [of VA], either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable; or (2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that the care he received at the Asheville VA Medical Center (VAMC) undergoing two separate total knee replacements, first in May 2012 for his right knee and then in September 2012 for his left knee, has caused impairment resulting in his inability to maintain employment. The Veteran has asserted that he was over-sedated during his right knee surgery. In essence, he asserts that his knee surgeries performed by the VA have caused him to be unable to continue working. He asserts that if he had known of the outcome of the surgeries, he would have waited to have undergone the surgeries. See September 2014 Statement. He therefore contends that he is entitled to compensation under the provisions of 38 U.S.C. § 1151. Treatment records confirm that the Veteran was diagnosed with severe osteoarthritis of both knees. See March 2012 VA treatment record. He initially underwent surgery on his right knee at the Asheville VAMC in May 2012. He reported being over-medicated during his right knee surgery. See September 2012 VA treatment record. The Veteran subsequently underwent a total knee replacement on his left knee at the Asheville VAMC in September 2012 with the same doctors. Shortly following his surgery, he went to the emergency room with issues concerning his left leg. A clot in his left leg was ruled out. See October 2012 VA treatment record. In an April 2013 VA treatment record it was noted that the Veteran was no longer taking pain medications and was ambulating well. An October 2013 VA treatment record noted that the Veteran was doing very well following his two knee replacement surgeries and had good range of motion. There was some clicking reported in his left knee but it was noted not to be painful. The Veteran again sought treatment in October 2014 reporting that he was experiencing knee issues. A subsequent April 2016 VA treatment record noted that both knees were doing well and were stable. April 2018 and January 2019 VA treatment records reflect pain in his left knee. The Board notes that the Veteran has been granted Social Security Administration (SSA) disability benefits on the basis of multiple disabilities, including knee problems. However, these records are not binding on VA determinations. The Board finds that the weight of the evidence does not establish that the Veteran's current claimed disability is due to VA's carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or an event not reasonably foreseeable and that the best evidence in this case provides evidence against this claim. The Veteran was afforded an April 2015 VA opinion which clearly addresses this question. The VA examiner noted there had not been carelessness, negligence, lack of proper skill, error in judgment or any other instance of fault by the VA in the furnishing of hospital care. The examiner additionally noted that no event not reasonably foreseeable (i.e. not a normally expected and discussed potential risk associated with the treatment, procedure or condition) occurred in conjunction with the knee surgeries. The examiner explained that the Veteran had an objectively normal course for both knees and has normal postoperative radiographs. He noted that his claims of unemployability may be false. The examiner stated that sedation is common in postoperative patients and was handled appropriately. The examiner noted that the Veteran was felt to have been doing well on both April 4, 2013, and October 28, 2013 follow-up treatment visits. The examiner additionally noted that the VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider and did not furnish hospital care, medical or surgical treatment or examination without the Veteran's informed consent. In response to the question of "whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable" the examiner answered "no." The examiner explained that the Veteran appears to have had a normal operative course and was thought to have been doing well. The examiner noted that there was not objective evidence to support his claim of unemployability and that sedation after surgery is common as is the workup that he underwent. The examiner stated that there had been no breach of the standard of care. There are no other opinions of record. Following a review of the evidence in this case, and the applicable laws and regulations, it is the Board's conclusion that the evidence persuasively weighs against the Veteran's claim for compensation under 38 U.S.C. § 1151 for residuals of bilateral total knee replacements due to VA treatment. The Board has considered the Veteran's statements relating his residuals of bilateral total knee replacements to his 2012 surgeries. He is certainly competent, even as a layman, to comment on things within the perception of his five senses, such as knee pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Nonetheless, the Veteran is not competent to opine on questions of causation, negligence, or reasonable foreseeability of medical risks related to his 2012 procedures. These determinations are based upon findings that are medically complex in nature and simply not readily amenable to lay comment. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease that necessarily involved complex medical issues). Indeed, contrary to his assertions, the medical evidence, as highlighted by the April 2015 examiner, shows that VA was not careless, negligent, used lack of proper skill, or demonstrated error in judgment, or similar instance of fault. The evidence also shows that the complications claimed by the Veteran were reasonably foreseeable. The Board finds the April 2015 VA opinion to be the most probative evidence as to whether the Veteran suffers from disability related to the 2012 procedures. (Continued on next page) Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.