Citation Nr: 1314571 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 07-31 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for right peroneal nerve palsy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his daughter, and his son ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the case was subsequently transferred to the RO in Baltimore, Maryland. In July 2010, the Veteran testified at a hearing before a Veterans Law Judge in Washington, DC. A transcript of the hearing is of record. The Veterans Law Judge who held the hearing is no longer employed by the Board. In a July 2011 letter, the Veteran was informed of this fact and was notified of his right to have another hearing before a current member of the Board. In August 2011, the Veteran waived his right to have another hearing and requested that the case be considered based on the evidence of record. In July 2010, September 2011, and November 2012, the Board remanded the claim for further development. That development was completed, and the case has since been returned to the Board for appellate review. A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has additional disability of right peroneal nerve palsy that resulted from right knee surgery at a VA Medical Center in May 1997. 2. The May 1997 right knee surgery required anesthesia, but the record contains no document signed by the Veteran showing that he provided informed consent prior to the procedure. CONCLUSION OF LAW The requirements for compensation under 38 U.S.C.A. § 1151 for right peroneal nerve palsy have been met. 38 U.S.C.A. § 1151 (West 2002 Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.361, 17.32 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. However, in the decision below, the benefit sought on appeal has been granted in full. Therefore, further discussion of compliance with the VCAA is not necessary because there would be no harm prejudice in this case. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Legal Criteria The Veteran filed his claim for compensation under the provisions of 38 U.S.C.A § 1151 in November 2005. 38 U.S.C.A. § 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. 38 U.S.C.A. § 1151. 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, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C.A. § 1701(3)(A), and (2) 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. Id. The implementing regulation applicable to 1151 claims received on or after October 1, 1997 is 38 C.F.R. § 3.361, which provides that, in order 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 program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). Under 38 C.F.R. § 3.361(c), a claim based on additional disability due to VA medical treatment requires actual causation. To establish causation, the evidence must show that the VA surgical treatment resulted in the veteran's additional disability. Under 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 medical treatment, it must be shown that the surgical treatment caused the additional disability; and VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the veteran and his representative in compliance with 38 C.F.R. § 17.32. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Informed consent must be documented appropriately in the record. Signature consent is required for the use of sedation, anesthesia or narcotics; situations causing significant discomfort, risk of complication or morbidity or requiring injections of any substance into a joint space or body cavity. 38 C.F.R. § 17.32(d). Whether the proximate cause of an additional disability 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). Analysis The Veteran seeks compensation for right peroneal nerve palsy under the provisions of 38 U.S.C.A. § 1151. In statements and testimony, he contends that he was not informed of the potential risks for neurological complications prior to a total knee arthroplasty re-revision surgery on his right knee in May 1997. During a February 2007 telephone conference with a Decision Review Officer, he stated that he was informed of the possibility of infection, but was not told about possible neurological complications. The medical evidence of record supports the Veteran's contention that his right peroneal nerve palsy resulted from his May 1997 knee surgery and constitutes an additionall disability. VA records show that, on May 6, 1997, the Veteran underwent a re-revision of a total right knee replacement at the VA Medical Center in Martinsburg, West Virginia. The operation record shows that he elected to have the surgery after he was advised of the risk factors. On May 13, 1997, the Veteran underwent an open reduction and replacement of the tibial insert of the right knee. The Veteran's hospital discharge summary in May 1997 provides a thorough history of the Veteran's right knee problems, which is consistent with the other evidence of record. The physician noted that the Veteran first underwent a total right knee replacement in 1984. After sustaining an injury to the right knee, he underwent a revision of the total knee replacement in October 1994, which became infected with staph bacteria. In December 1994, the Veteran underwent an arthrotomy and debridement of the right knee. In March 1996, an open debridement was done. Following the debridement, Gentamicin impregnated cement spacers were inserted into the distal femoral and proximal tibial canals. Revision of the cement block was delayed, and doctors advised the Veteran to do the following: (1) either undergo fusion of the knee, (2) remove the cement block and manage the flail joint with a brace, or (3) undergo a re-revision of the total knee joint with full awareness of the complications, such as reactivation of the infection up to 38 percent. The Veteran was adamant about undergoing the re-revision of the total knee joint. On May 6, 1997, the Veteran underwent a surgical procedure for the removal of the cement block and the re-implantation of the S-ROM system. After the surgery, the Veteran immediately dislocated his knee, and on May 13, 1997, he had surgery for evacuation of hematoma and a replacement of the tibial insert. The physician noted that the latest complication of the knee surgery was a partial compromise of the deep branch of the peroneal nerve with a partial footdrop. The sensory recovery was underway, but motor strength was yet to return. After the May 1997 surgery, the Veteran continued to have problems with his peroneal nerve. VA treatment records dated in October 1997 show that he clearly had peroneal weakness. Subsequent VA treatment records, including entries dated in July 1997, June 1998, June 1999, and April 2005, also document him as having a right foot drop. In June 1998, the Veteran underwent an exploration of the peroneal nerve of the right knee, which showed peroneal nerve neuropathy of the right knee. The Veteran was provided a VA examination in August 2010 during which the examiner noted that the Veteran underwent a revision of the right total knee prosthesis. It was also noted that a foot drop remained and that the peroneal nerve palsy persisted. A VA medical opinion was also obtained in November 2010. After reviewing the claims folder, the examiner opined that peroneal nerve palsy is at least as likely a result of knee surgery, as there is adequate documentation by the operating surgeon and the hospital notes that the nerve was impaired shortly after the surgery on May 6, 1997. The examiner concluded that there is a temporal relationship in the onset of the palsy with the knee surgery in May 1997, which indicated a likelihood that the nerve injury occurred during the surgery. The examiner also opined that the proximate cause of the disability was not carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of VA or an event that was not reasonably foreseeable. Instead, the examiner noted that the Veteran had previous knee surgeries and observed that the risks and complications of another knee replacement were discussed with the Veteran and that he still elected to have the May 1997 surgery. In rendering these opinions, the examiner cited to medical literature, which indicated that peroneal nerve palsy is a common neurological complication after a total knee arthroplasty. The literature also noted that the clinical manifestations include a foot drop and that nerve recovery varies. Although the examiner commented that peroneal nerve palsy is a known, but rare, complication of knee surgery, he also stated that the risk rises in the setting of repeated knee surgeries, infections, and bone deterioration. The examiner stated that there was adequate documentation of risks presented by the surgeon, as there were detailed progress notes on wound infections, wound healing, timely awareness of the injury, and attempts to correct it. It was noted that the Veteran and his family accepted the risks on one occasion. (The Board notes that a February 2006 VA record shows that the Veteran and his daughters were advised on how his right knee infection could be controlled, which the Veteran at that time decided to control with antibiotic suppression.) The examiner concluded that carelessness, negligence, or lack of proper skill as well as error in judgment were not proved on the part of the provider or the facility. Given that the Veteran underwent surgery that involved anesthesia in May 1997, a signed consent form was required. See 38 C.F.R. § 17.32(d)(1). While the August 2010 VA examiner stated that the Veteran was advised of the risks pertaining to his right knee surgery in May 1997, the evidence of record does not show that VA furnished the surgical treatment in May 1997 with the Veteran's informed consent. In this regard, the claims file includes Standard Form 522, Request for Administration of Anesthesia and for the Performance of Operation and Other Procedures, dated on May 5, 1997, for revision of the right total knee replacement. The disclosed complications included a flare-up of the infection, nerve damage, deep vein thrombosis, and myocardial infarction; however, that form does not include the Veteran's signature. Multiple attempts have been made to obtain a copy of the signed consent form, but they were unsuccessful. Thus, there is no evidence that the Veteran provided the informed consent prior to undergoing surgery in May 1997, as required by the law. In summary, the evidence shows that the Veteran has the additional disability of right peroneal nerve palsy as a result of the May 1997 surgery. Furthermore, the record reveals that the surgery required the use of anesthesia, but there is no informed consent form signed by the Veteran. Although there is some reference to the Veteran having agreed to the surgery and its risks, in the absence of any signed document, the Board cannot conclude that informed consent was actually obtained. Accordingly, the Veteran meets the criteria under the provisions of 38 U.S.C.A. § 1151 right peroneal nerve palsy. ORDER Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for right peroneal nerve palsy under the provision of is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs