Citation Nr: 1322724 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-34 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals due to complications of a right hip replacement surgery. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the case has been subsequently transferred to the RO in Wilmington, Delaware. In April 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing has been associated with the record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In general, when a claimant experiences additional disability as the result of hospital care, medical or surgical treatment, or examination furnished by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151. The provisions of 38 U.S.C.A. § 1151 provide that when there is no willful misconduct by a veteran, disability resulting from VA hospital care furnished the veteran will be compensated in the same manner as if service-connected, if the disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event which is not reasonably foreseeable. See also 38 C.F.R. §§ 3.358, 3.361. The Veteran asserts that that he is entitled to compensation pursuant to 38 U.S.C.A. § 1151 for residual disability due to complications of a June 2007 right hip replacement surgery at the Philadelphia, Pennsylvania, VA Medical Center (VAMC). Specifically, he claims that while undergoing the right hip replacement surgery on June 14, 2007, his pelvis was fractured, and as a result, his right knee/leg has turned inward. During his April 2013 hearing before the Board, the Veteran testified that due to the tilting of the pelvis, which resulted from the fracture status post right hip surgery, two discs of his lower lumbar spine are out of place. He also claimed that post-surgical treatments provided by the VA were not appropriate in that physical therapy was not timely administered and as a result, he developed atrophy in his right leg, which eventually caused nerve damage. The medical evidence of record shows that the Veteran underwent a right hip total replacement surgery on June 14, 2007 at the Philadelphia VAMC and the surgery was complicated by an intraoperative acetabular fracture. The Veteran was sent to the Wilmington VAMC for rehabilitation evaluation and placement. He was discharged in July 2007 to follow-up by the visiting nurse and the primary care physician. The Veteran was provided a VA joints examination in March 2008. The VA examiner indicated that the claims file was reviewed. The Veteran complained of pain in the right knee and right leg. He stated that he had pain in the right hip and could not stand for more than 15 minutes due to pain; he could only walk one block because of pain. The diagnoses were right hip injury with degenerative joint disease and avascular necrosis status post right hip replacement complicated by intraoperative acetabular fracture; and claimed right leg condition secondary to right hip replacement. The examiner opined that there was disability caused by the intraoperative fracture of the acetabulum; the Veteran was not allowed to weight bear for several weeks. It was noted that attempts were made to enroll the Veteran in a nursing home, but due to his inability to cooperate due to his mental problems, he was discharged to his home. The examiner noted that intraoperative fracture increased the length of time the Veteran was homebound with significant effect on him. In support of this opinion, the examiner further noted that an acetabular fracture is a significant liability and the Veteran could not ambulate until the fracture had healed appropriately. In August 2008, the RO provided the Chief of Staff of the Philadelphia VAMC with the Veteran's VA and private medical records, as well as his statements, and requested that an investigation be conducted to determine whether the Veteran's intraoperative acetabular fracture resulted from carelessness, accident, negligence, lack of proper skill, error in judgment or similar instances of fault on the part of the VA without informed consent, or an event not reasonably foreseeable. In a September 2008 statement, J.E., M.D. stated that during the June 2007 surgery, a non-displaced fracture of the acetabulum was created and that the fracture was noted immediately and addressed appropriately with multiple fixation screws through the acetabular shell. It was noted that the Veteran was discharged from the Philadelphia VAMC on June 26, 2007 and was hospitalized at the Wilmington VAMC from June 26, 2007 to July 4, 2007 for rehabilitation. Dr. E. noted that during that admission the Veteran exhibited behavioral issues and was not accepted by the nursing home care unit because of his behaviors warnings; staff members were concerned about their safety as well as that of other patients, and security was called on several occasions. Dr. E. opined that "[b]oth the femur and the acetabulum can be fractured during a total hip arthroplasty. It is a recognized potential complication in the operating room. Both are specifically mentioned in our informed consent (12.5 attached). In this [V]eteran's surgery it occurred as an event not reasonably foreseen. It was treated appropriately and immediately." Dr. E. further opined that there was no permanent residual deficit for the Veteran related to his June 2007 surgery because he was asked to be non-weight bearing on his hip for six weeks to allow for bone healing. Indeed, the record includes a June 2007 consent form from the Philadelphia VAMC signed by the Veteran, his physician and a witness, which in pertinent part, provides that the known risks of a total hip arthroplasty procedure include associated fractures secondary to the surgical procedure and sciatic nerve injury and its resulting consequences, among others. In this regard, in an April 2013 VA orthopedics consultation note, the Veteran reported that immediately after the right hip surgery he had pain in the right hip with radicular symptoms into the entire right lower extremity. He also reported numbness and tingling that extended into the lower leg and foot and attributed his ongoing right lower extremity symptoms to his pelvis fracture as a complication of the surgery. A VA orthopedic surgeon opined that based on the Veteran's reported history, it seemed likely that this sciatic nerve was injured during the course of the surgery, and this would account for his radicular symptoms as well as the numbness over the dorsum of his foot and lateral aspect of the leg; however, the surgeon stated that it would be very helpful to have better objective documentation from the medical record regarding the onset of the Veteran's complains of radicular symptoms into the right lower extremity. After reviewing the medical opinions of record, the Board finds them inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). Initially, it is not clear from the record whether there is any additional disability due to complications of the Veteran's June 14, 2007 right hip replacement surgery and post-surgical treatments. Furthermore, the September 2008 VA medical opinion stated that the acetabulum fracture during the Veteran's total hip arthroplasty was a recognized potential complication in the operating room, which was specifically mentioned in the informed consent signed by the Veteran prior to the surgery. If any additional disability caused by intraoperative fracture was a recognized potential complication of operation, then it should have been foreseeable. However, the examiner later made a conflicting statement that in the Veteran's surgery, the intraoperative fracture occurred as an event not reasonably foreseen. To that effect, 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) (2012). As noted above, the June 2007 consent form listed intraoperative fracture and sciatic nerve injury as the known risks of a total hip arthroplasty procedure. However, due to the conflicting statements in the September 2008 VA medical opinion, the Board finds that this opinion is not adequate. The March 2008 VA medical opinion and April 2013 VA consultation note are also not adequate because they failed to address whether any additional disability found resulted from carelessness, accident, negligence, lack of proper skill, error in judgment or similar instances of fault on the part of the VA without informed consent, or was due to an event not reasonably foreseeable. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, the case is remanded for another medical opinion. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to Dr. E. who rendered the September 2008 VA medical opinion, or suitable substitute if unavailable, to determine whether any additional disability caused by complications of the right total hip arthroplasty is related to any deficiency in VA medical treatment. The VA examiner should provide an opinion as to whether the June 2007 right hip replacement surgery and postsurgical treatment rendered in June and July 2007 following his right hip surgery caused any additional disability of any kind, to specifically include residuals due to complication of intraoperative fracture of the acetabulum or sciatic nerve injury. Thereafter, the examiner must provide an opinion as to whether it is at least as likely as not that any additional disability found was (a) caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical, or surgical treatment, or examination, or (b) was due to an event not reasonably foreseeable. The examiner must reconcile his/her opinion with the September 2008 VA medical opinion statement that "[i]n this [V]eteran's surgery [the acetabulum fracture] occurred as an event not reasonably foreseen." In addressing these matters, the examiner must state whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in the course of the treatment. In determining whether an event was not reasonably foreseeable, the examiner must discuss whether or not any additional disability found is considered to be an ordinary risk of undergoing right hip replacement surgery performed on June 14, 2007. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. Any additional examination of the Veteran deemed warranted should be scheduled. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. Thereafter, readjudicate the issue on appeal of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals due to complications of a right hip replacement surgery. If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).