Citation Nr: 1801932 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-15 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for additional disability manifested by neurological residuals with foot drop, leg length discrepancy, and a right knee condition, status post right total hip arthroplasty (THA) ("right THA residuals"). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from March 1966 to February 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the case was subsequently transferred to the VA RO in Philadelphia, Pennsylvania. This case was previously before the Board in January 2017, at which time the issue on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT The Veteran does not have additional disability manifested by right THA residuals that resulted from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional disability manifested by right THA residuals are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he developed additional disability as a result of complications from right THA surgery. Specifically, the Veteran asserts that he developed neurological residuals with foot drop, leg length discrepancy, and a right knee issue as a result of a January 2004 right THA procedure performed at the Dorn VA Medical Center in Columbia, South Carolina. A review of the record shows the Veteran had a notable medical history of degenerative joint disease of the right hip and failed physical therapy, for which he underwent a right THA procedure in January 2004. However, immediately following the surgery, it was noted that the Veteran had right sciatic nerve neuropraxia and foot drop, and was treated with ankle-foot orthosis. Prior to discharge, the Veteran was diagnosed with post-operative sciatic nerve neuropraxia and right leg length discrepancy. With regard to right knee pain, the Veteran reported onset of right knee pain within 6 months of his right THA surgery and November 2004 x-rays revealed right knee arthritis. December 2007 comparison x-rays showed the Veteran's right knee arthritis had not progressed over time. At a March 2013 VA examination, the Veteran reported he continued to experience right hip and knee pain. He reported a persistent limp and use of a cane to help with limited movement in his right leg, as well as being limited to walking for half an hour before having to rest due to pain. Upon physical examination, the right leg was measured to be 1.5 cm shorter than the left. With regard to neurologic residuals of the right THA, the examiner noted limited motion, weakness, and numbness in his right foot. As for the Veteran's claim under 38 U.S.C. § 1151, the examiner opined that he could not identify any additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on VA's part in furnishing hospital care, medical, or surgical treatment, or examination. He stated that informed consent was obtained as documented in the operating note, but noted that the original informed consent document was not associated with the claims file. The examiner noted that nerve damage was recognized in a timely manner and managed properly. The examiner's rationale stated that sciatic nerve damage is known to occur in 1-2% of patients undergoing THA and was more frequent in patients who need acetabular reconstruction. The operating note explicitly noted difficulty with positioning the acetabular cup. Further, the examiner stated that slight shortening of the operated extremity is a known complication of that type of procedure. Lastly, the examiner stated that the technical aspects of the surgical procedure were outside of his realm of expertise, and suggested an orthopedic surgeon would be best suited for such and opinion. At a June 2017 VA examination by an orthopedic surgeon, the Veteran reported some recovery of right foot function but continued to experience right THA residuals since the January 2004 operation. The Veteran also endorsed worsening right knee pain when standing up or after prolonged standing or walking. The Veteran further reported that his right leg had become progressively shorter than the left; however this was determined to be due, in part, to a left THA procedure performed in April 2017. Upon physical examination, the examiner noted the Veteran walked with an antalgic gait and used a cane for assistance. The examiner diagnosed right sciatic neuropraxia with foot drop status post right THA, right limb length inequality status post right THA, and right knee arthritis. The Board notes that the examiner did not attribute the right knee disability to the Veteran's status post right THA, noting that arthritis could develop independently in any articular joint. The June 2017 medical opinion stated that the Veteran appeared to have sustained post-operative sciatic nerve palsy with foot drop following his right THA in January 2004. Based on the evidence of record, the examiner confirmed that failure of conservative treatment and appropriate indications were present prior to proceeding with THA. The examiner opined appropriate technique appeared to have been utilized intra-operatively based on the operative note and post-op radiographs. The examiner noted the surgeon commented in the operative report about repositioning the acetabular cup, and noted that the need to do so is not outside the norms of this type of procedure. The examiner opined that this complication was unlikely to be related to any type of adverse outcome to the Veteran; in fact, the examiner stated that if cup malposition was not identified intra-operatively, it could lead to other complications post-operatively such as hip dislocation, which had not been an issue for the Veteran. The examiner noted sciatic nerve palsy was an unusual but not rare complication in THA with the literature indicating occurrence of 1-2% of the time even in the most skilled hands. He stated that the proximity of the sciatic nerve in relation to the operative field in THA puts it at risk for traction injury and other complications. According to the examiner, typically, most standard operative consents for THA explicitly state nerve damage as a possible risk of surgery. The examiner opined that the Veteran's complication was appropriately identified and managed according to current care standards. He noted recovery of nerve function could be highly variable. The examiner opined that the Veteran appeared to have had near full recovery but did have some residual foot weakness and numbness related to his nerve palsy that, in his opinion, were causally related to his right THA. The examiner further stated that limb length inequality was also a known outcome of THA. Reviewing the operative note, the size of implants utilized, as well as radiographs, the examiner opined that the Veteran's immediate post-operative limb-length discrepancy was within what may be typically expected for that type of procedure. In this regard, the examiner stated that a balance needs to occur during THA between limb length and hip stability. He stated that, often times, identical post-operative limb lengths are sacrificed to some degree in order to gain hip stability. The examiner stated that, typically, most operative consents for THA would explicitly state limb length inequality as a potential outcome. In his opinion, the degree of limb lengthening that occurred during the Veteran's right THA was necessary to achieve a good functional post-operative outcome, that it was not excessive, and that no care standards were breached. The examiner opined that the Veteran's current limb length inequality was causally related to the fact that he had a THA; however, the actual cause of such was not readily apparent. The examiner stated that there could be many reasons to account for the subsidence, but opined that the most probable explanation would be aseptic loosening. According to the examiner, stem subsidence/loosening was an unusual, but not rare, possibility following THA. Nevertheless, the examiner opined that no standards of care were breached. Lastly, the examiner noted that while the Veteran had right knee arthritis based on radiographs and examination, he could not conclude that it had any direct relation to his THA, as arthritis could potentially develop independently in any articular joint. The RO made attempts to obtain the original informed consent form signed by the Veteran prior to his January 28, 2004 right THA, but the original document could not be located. Of record, however, is a January 28, 2004 VA Nursing preoperative assessment which confirmed the informed consent form was properly completed, signed, dated, and contained the attending surgeon's name, and that pre-op patient training/education was completed. Further, the June 2017 examiner noted that it is common medical practice for operative consents for hip arthroplasty to state nerve damage as a possible risk of surgery and limb length discrepancy as a potential outcome. Therefore, the Board finds there is sufficient evidence of record to show that informed consent was properly obtained prior to surgery and that the Veteran was notified of potential risks and outcomes of the procedure. The Board finds that the March 2013 and January 2017 VA opinions are adequate, especially when read in conjunction with one another, because the examiners thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007; Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, as the Veteran has not submitted any contrary opinions, the VA opinions are the most probative of the evidence. The Board acknowledges that the Veteran might sincerely believe that he should be compensated for the additional disability resulting from his January 2004 VA Medical Center THA procedure, and the Veteran is competent to report observable symptoms and how a disability impacts his life. However, as noted above, it has not been established that the additional disability was the result of carelessness, negligence, lack of proper skill, or similar instance of fault on the part of VA in providing treatment; or that it was the result of an event not reasonably foreseeable. Further, an opinion of that nature requires medical knowledge and expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. In sum, the Veteran did incur additional disability as the result of his January 2004 surgical procedure at the VA Medical Center. However, the VA examiners have opined that the additional disability was not the result of carelessness, negligence, lack of proper skill, or similar instance of fault on the part of VA in providing treatment; and was a reasonably foreseeable complication of the procedure. Those opinions are the most probative evidence of record. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to compensation under 38 U.S.C. § 1151 for additional disability manifested by neurological residuals with foot drop, leg length discrepancy, and a right knee condition, status post right THA, is not warranted. ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional disability manifested by neurological residuals with foot drop, leg length discrepancy, and a right knee condition, status post right THA, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs