Citation Nr: 1614297 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 10-28 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of left total knee arthroplasties as a result of April and May 2008 VA surgeries and treatment. REPRESENTATION Veteran represented by: South Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In April 2008, the Veteran had left knee replacement surgery at the VA medical center (VAMC). In May 2008, the replacement failed and another surgeon performed surgery on the Veteran for a second knee prosthesis. The Veteran testified he had just returned home from the first surgery and the left knee prosthesis popped out. He went to the VAMC emergency room and they wrapped the knee and discharged him. The left knee prosthesis popped out a second time and he was admitted to the VAMC for the replacement surgery. In April 2012, the left knee prosthesis was removed because it was loose and infected and he received a third left knee prosthesis in September 2012. Since that time, the Veteran testified he has continuing pain and other residuals. The Veteran has filed a claim under 38 U.S.C.A. § 1151 asserting that negligence from VA care caused his current residuals. Specifically, he contends that the first surgery was not done properly resulting in its failure. Second, he contends that when the left knee prosthesis first popped out and he went to the VA emergency room, they should have admitted him at that time. Finally, he contends the infection came from the second surgery in May 2008. The Board finds that additional development is needed to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Veteran testified that the fourth surgery in September 2012 was performed by the same surgeon who removed the second prosthesis in April 2012. The September 2012 surgery, however, occurred outside the VA system at a private facility by the surgeon on a fee basis. The records of the surgeon's private treatment and the inpatient September 2012 hospital records have not been associated with the file and upon remand, the records should be requested. Based upon the Board's review of the file, there also appears to be VAMC records that have not been associated with the file. The February 2009 rating decision referred to the informed consent form signed by the Veteran for the April 2012 surgery and there are documents indicating the signed informed consent was requested by the RO. The file does not appear to contain this document. There is only the informed consent for anesthesia. That document and the signed informed consent for the second May 2008 surgery should be requested again and associated with the file. In addition, the VAMC records appear complete up to August 2005 and then start with a note in April 2008 by the first surgeon that he discussed the surgery with the Veteran The records of left knee treatment from August 2005 leading up to the April 2008 surgery have not been associated with the file. Finally, the file indicates the Veteran was discharged from the inpatient hospital of the VAMC after the April 2008 surgery for direct admission to the VAMC rehabilitation ward or facility of the VAMC. There are no records from the rehabilitation ward. All of the foregoing VAMC records should be associated with the file. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). VA obtained an opinion in April 2010 that the April 2008 surgery was properly performed. The opinion did not address the Veteran's contentions concerning his treatment in the VA emergency room and that VA treatment resulted in the infection of the second prosthesis. The Board finds that an examination and new opinion is warranted. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit or authorize VA to obtain the medical records of Dr. F. Voss, Richland Hospital and/or the University of South Carolina Specialty Clinic, as well as the records of any other non-VA medical provider who has treated the Veteran for his left knee. After securing any necessary releases, the AOJ should request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain relevant VA treatment records from August 2005 to April 2008 and the rehabilitation records from his admission in April 2008 to his discharge in May 2008. The request should also include updated VA treatment records dating since March 2016. The request shall include all treatment records, informed consent forms, laboratory or test results, and to include all progress notes, nurses' notes, consultation reports, laboratory, radiological, and other diagnostic studies. The RO is to specifically request and associate with the file copies of the Veteran's signed informed consent agreements for the April 2008 and May 2008 surgeries. A written response to that request is required. If requested records do not exist, the claims file should be annotated to reflect such and the Veteran notified of such. 3. After the records development is completed, schedule the Veteran for a knee examination by a physician to address the Veteran's claim for compensation under 38 U.S.C.A. § 1151. The claims file must be reviewed by the examiner providing the opinion. Any indicated tests should be conducted and the results reported. A complete rationale for all conclusions and opinions should be provided. Following review of the claims file and examination of the Veteran, the examiner is asked to address the following: a. Does the Veteran suffer from a left knee disability that was caused by or permanently worsened as a result of the April 2008 surgery, May 2008 emergency room treatment, and May 2008 surgery, to include the subsequent findings of the loose knee prosthesis and in infection in April 2012? b. If so, was the additional disability caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing either surgery and/or treatment, to include discharging him too soon from the emergency room? c. If fault on VA's part is not shown, is the additional disability due to an event that was not reasonably foreseeable? If the examiner cannot provide an opinion without resort to speculation, it is essential that the examiner explain why an opinion cannot be provided (i.e. lack of records, limits of medical knowledge, etc.). 4. After the development requested is completed, readjudicate the claim for compensation under 38 U.S.C.A. § 1151. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford a reasonable period to respond before the case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).