Citation Nr: 9915832 Decision Date: 06/09/99 Archive Date: 06/21/99 DOCKET NO. 96-12 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998) for the residuals of left total knee replacement, claimed to have resulted from medical treatment, specifically surgery, at a Department of Veterans Affairs (VA) medical facility in September 1991. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from April 1960 to December 1963. In an Administrative Decision of March 1996, it was determined that the veteran's service beginning on April 14, 1960 and ending on April 13, 1962 was honorable for the purpose of VA benefit eligibility. However, the period of service from April 14, 1962 to December 18, 1963 was determined to be dishonorable for VA benefit eligibility purposes. Accordingly, the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 is predicated upon his period of "honorable" service from April 1960 to April 1962. FINDINGS OF FACT 1. On September 23, 1991, the veteran underwent a left total knee replacement (arthroplasty) at a Department of Veterans Affairs (VA) medical facility. 2. Following his September 1991 left knee replacement, the veteran experienced certain residual disability, including pain, swelling, and a reduction in range of motion (of his left knee). 3. On October 1, 1992, the veteran underwent surgical revision of his previous left total knee replacement (arthroplasty) at a VA medical facility. 4. The veteran's current residuals of left total knee replacement (arthroplasty) are the result of treatment, specifically surgery, by VA medical personnel in September 1991. CONCLUSION OF LAW Compensation benefits for the residuals of left total knee replacement (arthroplasty) pursuant to the provisions of 38 U.S.C.A. § 1151 are warranted. 38 U.S.C.A. § 1151 (West 1991 & Supp. 1998); 38 C.F.R. § 3.358 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background In mid-September 1991, the veteran was admitted to a VA medical facility for left total knee replacement. At the time of admission, it was noted that the veteran was status post a left tibial plateau 20 years earlier, which had been treated by open reduction and internal fixation. Reportedly, the veteran had experienced increasing pain as well as a decreasing range of motion over the past four years, and had been unresponsive to treatment with nonsteroidal anti- inflammatory medication. On physical examination at the time of admission, there was noted a varus internal rotation deformity of the left knee and proximal tibia, with 20-degree flexion contracture. On September 23, 1991, the veteran underwent left total knee replacement with an AGC component, the tibial and patellar components of which were noncemented. Postoperatively, he received CPM and rehabilitation. On the day following surgery, the veteran stated that he was "not tolerating pain well." He was able to transfer from his wheelchair to the standing position between parallel bars, and ambulate with the assistance of his therapist. Range of motion measurements of the veteran's left knee showed flexion to 65/70 degrees, with extension to minus 15 degrees. Approximately two days later, there was noted a slight swelling in the veteran's left knee, which was confined by an immobilizer. Additionally noted was that the veteran was able to transfer to his wheelchair with minimal help. At the time of the veteran's discharge on September 30, 1991, he was able to ambulate well with crutches, and to negotiate stairs. Range of motion studies showed motion from 5 to 95 degrees. It was noted at the time of discharge that the veteran knew "his exercises, including range of motion and strengthening exercises," and that he was therefore being discharged home to be followed up in the Total Joint Clinic in one week. In a VA outpatient treatment record dated in early October 1991, it was noted that the veteran had been ambulating with crutches, and that he had "no complaints." Physical examination disclosed midline lateral incisions which were healing well, and no evidence of infection. Further examination revealed some swelling in the veteran's left knee, as well as quadriceps atrophy. Range of motion studies showed hyperextension to zero degrees, with 10 degrees of flexion. The clinical assessment was of a patient two weeks' status post left total knee arthroplasty, whose wounds were healing well, but who was experiencing a limited range of motion. During the course of private outpatient treatment in mid- February 1992, it was noted that the veteran had been experiencing "persistent problems" with left knee pain, as well as a limited range of motion due to "less than satisfactory total knee replacement on the left." Physical examination of the veteran's left knee showed extension to 160 degrees, with flexion to 90 degrees, accompanied by diffuse swelling secondary to surgery, but no acute inflammation. The clinical assessment was of left knee degenerative arthritis, status post total knee replacement with a limited range of motion. In correspondence of early April 1992, the veteran's private physician wrote that the veteran suffered from degenerative arthritis of both knees, as a result of which he was somewhat debilitated. Additionally noted was that the veteran had undergone a left total knee replacement, and was suffering certain "postoperative complications." During the course of VA outpatient treatment in late April 1992, it was noted that the veteran had undergone a left total knee replacement, and that he was currently experiencing constant pain. Range of motion studies of the veteran's left knee showed motion from 0 to 95 degrees, as well as certain varus deformities. In October 1992, the veteran was once again hospitalized at a VA medical facility for revision of his September 1991 left total knee replacement. At the time of admission, the veteran gave a history of a "painful unstable left knee" following surgery one year earlier. Reportedly, the veteran underwent prior surgery for osteoarthritis secondary to trauma 20 years earlier. According to the veteran, while he experienced no problems initially, he later developed pain, swelling, and instability, which, though somewhat alleviated by medication, was "not helped by physical therapy." On physical examination, there were noted parapatellar and lateral scars on the veteran's left knee, as well as quadriceps wasting. Range of motion was from 50 to 90 degrees, with no lateral to medial instability. On October 1st, the veteran underwent surgical revision of his left total knee arthroplasty. Following surgery, he was attended by the Rehabilitation Service, and assessed as fit for discharge on October 8, 1992. At the time of discharge, the veteran displayed range of motion from 0 to 85 degrees, and could bear weight (on his left leg). In an October 1992 questionnaire describing the criteria necessary to medically substantiate the presence of disabling arthritis of the knee, the veteran's VA physician wrote that the veteran presented with signs of a marked limitation of motion of his left knee, as well as gross anatomical deformity of that knee (e.g., subluxation, contracture, bony or fibrous ankylosis, instability), and radiographic evidence of significant joint space narrowing and bony destruction, such that there was a marked limitation in the veteran's ability to walk and stand. Additionally noted was that the veteran did not return to full weight-bearing status within 12 months of his September 1991 knee surgery. During the course of VA outpatient treatment in early February 1993, the veteran's left knee displayed a range of motion from 10 to 95 degrees, with no effusion, but some quadriceps atrophy. The clinical assessment was status post revision of a left total knee replacement. In a statement of May 1993, the veteran's private physician wrote that the veteran had undergone two knee replacement surgeries on his left knee, the most recent of which occurred on October 1st, 1992. Additionally noted was that the veteran had had a "less than optimal result and still must walk with a cane." In an August 1993 decision of the Social Security Administration, it was noted that, accordingly to a "medical expert," the veteran's total knee replacement in September 1991 had achieved a "less than optimal result," and was the equivalent of the medical criteria defining disabling arthritis of a major weight-bearing joint. Additionally noted was that the opinion of the aforementioned medical expert, when considered in conjunction with the opinions of the veteran's treating physicians, persuaded the Social Security administrative law judge that the veteran's left knee impairment had equaled the medical criteria for disabling arthritis since the date of his first total knee replacement (September 23, 1991). In a VA outpatient treatment record dated in early October 1993, it was noted that the veteran was status post a left total knee revision, and that he was currently experiencing sharp pain on a daily basis, which was somewhat worse at night. Additionally noted were complaints of swelling in the left knee. In early November 1994, the veteran voiced continued complaints of pain in his left knee. Reportedly, the veteran displayed a mild limp, but no swelling. Range of motion measurements for the veteran's left knee were from 0 to 95 degrees, and radiographic studies showed no evidence of loosening. During the course of VA outpatient treatment in mid-July 1995, there were noted complaints of pain and swelling, as well as "heat" in the veteran's left knee. In a VA outpatient treatment record dated in July 1996, the veteran once again complained of pain, swelling, and "heat" in his left knee. Range of motion studies showed motion of the veteran's left knee from 5 to 90 degrees, with intact pulses, and no evidence of swelling or heat. Radiographic studies showed evidence of a questionable tibial loosening. In December 1996, there was once again noted the presence of questionable tibial loosening, as well as degenerative joint disease of the left knee. In December 1996, a VA physician commented that he had served as the veteran's primary physician, and that one of his (the veteran's) "problems" consisted of residuals of total knee replacement, "times two on the left ." Following a "careful examination" of the veteran, it was noted that his gait was abnormal, and characterized by a limp favoring the left leg. The veteran's left knee was locally tender along the tibial plateau, and in the area over the tibia several centimeters below the knee. There was some swelling, but no redness, as well as warmth when compared with the other (right) knee. Muscle strength on the left was described as normal, though there was some weakness of the knee extensors associated with pain. It was the assessment of the veteran's VA physician that the veteran's "pain on the left was directly related to inflammatory changes or arthritic changes in the knee resulting from or related to (his) prosthesis." Additionally noted was that the orthopedic service had suggested a fusion of the veteran's left knee. Analysis The veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998). That is, he has presented a claim which is plausible. The Board of Veterans' Appeals (Board) is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998). In Gardner v. Derwinski, 1 Vet. App. 584 (1991), the United States Court of Appeals for Veterans Claims (Court) invalidated 38 C.F.R. § 3.358(c)(3), a portion of the regulation utilized in deciding claims under 38 U.S.C.A. § 1151. The Gardner decision was subsequently affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993). That decision was likewise appealed, and, in December 1994, the United States Supreme Court (Supreme Court) affirmed the lower courts' decisions in Brown v. Gardner, 115 S. Ct. 552 (1994). Thereafter, the Secretary of the Department of Veterans Affairs sought an opinion from the Attorney General of the United States as to the full extent to which benefits were authorized under the Supreme Court's decision. The requested opinion was received from the Department of Justice's Office of Legal Counsel on January 20, 1995. On March 16, 1995, amended VA regulations were published to conform with the Supreme Court's decision. Those regulations were subsequently revised, and, on October 1, 1997, there became effective new regulations governing the adjudication of claims for benefits under 38 U.S.C.A. § 1151. However, as of January 8, 1999, those "new" regulations have been rescinded. Notwithstanding the aforementioned rescission, it has recently been determined that all claims for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 filed before October 1st, 1997 must be adjudicated under the provisions of Section 1151 as they existed prior to that date. VAOPGCPREC 40-97 (December 31, 1997). Accordingly, the Board will proceed with the adjudication of the veteran's claim for Section 1151 benefits on that basis. The veteran in this case essentially argues that, as a result of his left total knee replacement surgery in September 1991, he has suffered "additional disability" in the form of pain, swelling, and an inability to perform a great many of his pre-surgery activities. In that regard, a review of the record discloses that, on September 23, 1991, the veteran underwent a left total knee replacement (arthroplasty) at a VA medical facility. Following that surgery, he experienced repeated episodes of pain and/or swelling, as well as some quadriceps atrophy, and a limitation of range of motion of his left knee. As a result of the aforementioned problems, the veteran, on October 1, 1992, underwent the surgical revision of his left total knee replacement (arthroplasty), following which he has continued to experience various left knee-related pathology. According to the veteran's primary VA physician, this symptomatology includes an abnormal gait, with a limp favoring the left leg, as well as tenderness along the tibial plateau and over the tibia, accompanied by some swelling. Additionally noted was the presence of some weakness of the left knee extensors, associated with pain. In the opinion of the veteran's VA physician, the veteran's pain is "directly related to inflammatory changes or arthritic changes in the (left) knee resulting from or related to (his) prosthesis." As noted above, in order to warrant compensation pursuant to the provisions of 38 U.S.C.A. § 1151, there must be demonstrated the presence of additional disability, as a result of hospitalization, or medical or surgical treatment by VA personnel. Based on the aforementioned, the Board is of the opinion that the veteran currently suffers from certain residual disability of the left knee which is as likely as not the result of his September 1991 left total knee replacement (arthroplasty) by VA personnel. Accordingly, compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the residuals of left total knee replacement (arthroplasty) are warranted. In reaching this determination, the Board is given due consideration to the veteran's testimony, and that of his spouse, given at the time of a hearing in September 1996. Such testimony, in the opinion of the Board, is both credible and probative as regards the issue currently under consideration, and further buttresses the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151. ORDER Compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the residuals of left total knee replacement (arthroplasty), resulting from medical treatment, specifically, surgery at a VA medical facility in September 1991, are granted. John E. Ormond, Jr. Member, Board of Veterans' Appeals