Citation Nr: 0413656 Decision Date: 05/27/04 Archive Date: 06/02/04 DOCKET NO. 92-05 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to compensation benefits for a total left knee replacement pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002). (The issues of entitlement to service connection for a kidney disorder and anxiety, compensation benefits for a rotator cuff tear pursuant to the provisions of 38 U.S.C.A. § 1151, a total compensation rating based on individual unemployability (TDIU), and an initial disability rating in excess of 10 percent for hallux valgus of the left foot are addressed in a separate decision under the same docket number.) REPRESENTATION Appellant represented by: Richard A. Rhea, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active military service from June 1947 to December 1949, and from September 1950 to July 1952. This matter is on appeal to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veterans Law Judge (VLJ) who presided at the August 2003 hearing addressed the issue of entitlement to compensation for a total left knee replacement pursuant to the provisions of 38 U.S.C.A. § 1151. Another VLJ considered the veteran's testimony on this issue given at a videoconference hearing in June 1998 and, after adjudicating other issues then pending on appeal, issued remand orders in December 1998 and September 2000, and in June 2003 remanded the case to honor the request for another Board hearing. As provided in the Board's current policies and procedures for processing decisions in such circumstances, a panel of three VLJs will address the issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a total left knee replacement in this decision. FINDING OF FACT The competent and probative medical evidence of record establishes that the veteran suffered additional disability of the left knee as a result of surgery performed at a VA medical facility. CONCLUSION OF LAW The criteria for compensation benefits for a total left knee replacement pursuant to the provisions of 38 U.S.C.A. § 1151 have been met. 38 U.S.C.A. §§ 1151 (West 1991 & Supp. 2000); 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.358 (effective prior to October 1, 1997). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The record prior to 1994 shows little information specific to the left knee other than a normal range of motion being reported on a VA examination in 1985. Degenerative joint disease of the knees is noted in 1994 outpatient reports. The summary of the hospitalization at the Birmingham VA Medical Center in September 1994 noted arthritis was greater in the left knee and that the veteran gained minimal relief with a nonsteroidal. According to the report he underwent a left total knee replacement without surgical complications and was able to stand and walk. He was discharged with a walker after 13 days but not without need of physical therapy at home. He was to be followed at the orthopedic clinic for a well-healed wound. The diagnoses included left total knee replacement. A November 1994 VA examination noted only that he was status post the left knee replacement. VA admitted the veteran to the same facility in late January 1995 after he reported having a tender and swollen left knee for the last week and being unable to bear weight on the left knee. X-ray reportedly showed no evidence of loosening or osteomyelitis. The knee was incised and drained, and cultures taken of the left knee showed Staphylococcus aureus. He remained hospitalized for 32 days and sent home with intravenous antibiotic support. At discharge the left knee was without erythema, induration or exudate and he was able to ambulate. The diagnoses included infected knee prosthesis and acute osteomyelitis. The veteran was hospitalized again for 22 days beginning in mid April 1995 for irrigation and debridement. The report noted his previous course and that he admitted to increasing pain with range of motion. He had 20 to 50 degrees range of motion and was extremely tender to the medial condyle. The impression was of a persistent infected left total knee. He had replacement of impregnated cement in addition to the irrigation and debridement. There were no complications and at discharge the wound was described as very well healed without infection. It was noted he would continue to wear a brace and ambulate with weight bearing as tolerated to the left lower extremity. The principal final diagnosis of failed left total knee with staph aureus infection was amended to include left knee osteomyelitis. The veteran was hospitalized at the same VA facility in June 1995 for 16 days for revision of the left total knee arthroplasty. At discharge his wound was reported as well healed in excellent condition with some mild swelling around it. He was instructed to bear weight as tolerated. The diagnoses included infected total left knee arthroplasty with Staphylococcus aureus, status post incision and drainage, and revision. Subsequent out patient reports in early 1996 noted that options for treatment were not good such as removing the knee replacement and fusing the knee. The veteran complained of knee pain and there was some looseness of the knee joint to lateral movement. The range of motion for both knees was reported as good without any record of the actual range in degrees. When the veteran filed the claim for compensation under section 1151 in June 1997, and in subsequent statements, he asserted that as a result of the surgeries he had many problems with infection, weakness and that he needed a brace and cane to stand and walk. He also added testimony at the Board hearing in June 1998. The VA examiner in May 1999 noted the veteran used a specially made hinged brace on the left knee that was described as extensive. The examiner indicated there was evidence of painful motion, etc. but no edema, redness, effusion and heat. Left knee flexion and extension (in degrees) was 102 and minus 12, respectively. The examiner stated that stability was very unstable in the anterior, posterior and lateral position. The diagnosis was failed prosthesis of the left total knee due to osteomyelitis with a residual degenerative joint disease and loss of function due to pain. The examiner believed that it was at least as likely as not that the condition of the veteran's knee at this time did result from treatment rendered at the VA medical center and that this was necessary consequences. VA clinical records dated early in 2000 note the veteran was followed for severe left knee pain and that he apparently suffered from chronic osteomyelitis. Another report noted instability post total knee replacement. Contemporaneous private medical reports from DR (initials), DO, mention various complaints including left knee pain and limited motion of the knee and show chronic osteomyelitis listed among his medical problems. The veteran provided oral testimony at the RO in May 2002 and at a second Board hearing in August 2003. Criteria Initially, the Board notes that during the pendency of this appeal pertinent laws and regulations related to claims filed pursuant to the provisions of 38 U.S.C.A. § 1151 were revised. Formerly, 38 U.S.C.A. § 1151 provided that "[w]here any veteran suffers an injury or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation...awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation...will be awarded in the same manner as if such disability, aggravation or death were service-connected." 38 U.S.C.A. § 1151 (West 1991 & Supp. 2000). In 1991 the United States Court of Appeals for Veterans Claims (CAVC) invalidated 38 C.F.R. § 3.358(a)(3), a portion of the regulation utilized in deciding claims under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993); aff'd Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552 (1994). The United States Supreme Court (Supreme Court) in affirming the CAVC's decision held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. Brown, supra. The provisions of 38 C.F.R. § 3.358(c)(3) (1994), formerly required that in order for compensation to be payable under § 1151, there must be a showing that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA. In March 1995 VA published amended regulations to conform to the Supreme Court decision. The revised provisions of 38 C.F.R. § 3.358 state that where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, compensation will be payable for such additional disability. In particular, the amended regulation, 38 C.F.R. § 3.358(c)(3), now provides: Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. 'Necessary Consequences' are those which are certain to result from, or were intended to result from the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it has not been determined at the time consent was given whether that treatment would in fact be administered. Subsequently, the provisions of 38 U.S.C.A. § 1151 were amended, effective October 1, 1997, to include the requirement of fault, requiring that additional disability be the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an event not reasonably foreseeable. See 38 U.S.C.A. § 1151 (West 1991 & Supp. 2000). However, in a recent opinion, the VA Office of the General Counsel held that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the code provisions as they existed prior to that date. See VAOPGCPREC 40-97. The CAVC has held that in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Similarly, a claim for 38 U.S.C.A. § 1151 benefits must be supported by medical evidence of a current disability and medical evidence that the current disability resulted from VA hospitalization, medical examination, or treatment. Although claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection, there are similarities in their adjudication. Boeck v. Brown, 6 Vet. App. 14, 16-17 (1993); Contreras v. Brown, 5 Vet. App. 492, 495 (1993). However, inasmuch as the original claim pursuant to the provisions of 38 U.S.C.A. § 1151 was filed in June 1997, the provisions of 38 U.S.C.A. § 1151 in effect prior to October 1, 1997 are applicable to the claim. VAOPGCPREC 40-97. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. §§ 3.102, 4.3 (2003). Analysis Preliminary Matter: Duties to Notify & to Assist At the outset, it should be noted that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the CAVC in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, §7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register. The portion of these regulations pertaining to the duty to notify and the duty to assist are also effective as of the date of the enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159). The Board, however, is satisfied that all necessary development pertaining to the issue under consideration has been properly undertaken. The Board is confident in this assessment because the evidence as presently constituted is sufficient in establishing a full grant of benefits. Therefore, any outstanding development not already conducted by VA is without prejudice; hence, any deficiencies in the duties to notify and to assist constitute harmless error. Additional development by the Veterans Benefits Administration Appeals Management Center (VBA AMC) would only serve to further delay resolution of the claim. Bernard, supra. Compensation under 38 U.S.C.A. § 1151 In brief, the veteran asserts that he developed additional disability of the left knee as a result of the surgical treatment VA provided in September 1994, the initial left total knee replacement procedure, and that the three subsequent surgeries through June 1995 were needed to address complications from infection of the left knee prosthesis. Inasmuch as the original claim was filed before October 1, 1997 (in June 1997), the provisions of 38 U.S.C.A. § 1151 in effect from October 1, 1997 forward are inapplicable to the claim. See VAOPGCPREC 40-97. The provisions of 38 U.S.C.A. § 1151, in effect prior to October 1, 1997, are more favorable to the claim, inasmuch as negligence need not be established in order for the appellant to prevail. The Board notes that under the law, in the context of this issue on appeal, where it is determined that there is a disability resulting from VA treatment, compensation will be payable in the same manner as if such disability were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. The VA examiner in May 1999 diagnosed a failed prosthesis of the left total knee due to osteomyelitis with a residual degenerative joint disease and loss of function due to pain. The examiner believed that it was at least as likely as not that the present condition of the knee resulted from treatment rendered at a VA medical center and that "this was necessary consequences". The characterization of the disability as "necessary consequences" misinterprets the intended application as explained by the United States Supreme Court in Gardner. That is, for example compensating one for the loss of a limb through amputation to which the patient had consented. Id at 556 note 3. The examiner reviewed the record, noting the "extensive remand chart" was reviewed. Obviously the examiner was aware of the condition of the left knee before the replacement to conclude that the current disability was a result of the VA medical treatment. No reasoning was provided to explain the belief that the level of disability described or that the failed prosthesis due to osteomyelitis was certain or intended from the surgical procedures, which is the contemplated meaning of the term "necessary consequences". This portion of the opinion seems inconsistent with the principal finding that the disability was the result of medical treatment and is accorded no probative weight. The Board reiterates the three basic requirements for prevailing on a claim for service connection, or in this case, compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151: (1) Medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service injury or disease and a current disability. See Hickson, supra. The Board concludes that the evidentiary record does support the veteran's claim of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for the left total knee replacement. The VA examiner reviewed the record and related the present condition of the left knee to the VA surgical treatment. The examiner was unequivocal in concluding there was a relationship between the veteran's left knee symptoms and the total knee replacement. The opinion to that extent responded to the relevant inquiry under the applicable version of the law. There is no competent opinion against the claim. The veteran has provided competent evidence through correspondence and hearing testimony of observable symptoms he has experienced, but he cannot relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In other words, the veteran is not competent to link left knee symptomatology to VA surgical treatment for his left knee in 1994 and 1995, but in this case, the record is supplemented with the opinion of a competent VA medical professional. For the foregoing reasons, the Board has determined that the record does support a grant of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a total left knee replacement. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, here the competent evidence supports the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a total left knee replacement is granted. ____________________________ ____________________________ LAWRENCE M. SULLIVAN STEVEN L. COHN Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _____________________________ RONALD R. BOSCH Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2