Citation Nr: 18146845 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 00-00 580 DATE: November 1, 2018 ORDER Entitlement to VA compensation benefits for residuals of right hip arthroplasty, under the provisions of 38 U.S.C. § 1151 is denied. FINDING OF FACT There was no failure to timely diagnose or properly treat the Veteran’s right hip arthroplasty; VA met its standard of care. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of right hip arthroplasty have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1981 to February 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2000 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The matter was remanded for further development in January 2014 and May 2017; there has been substantial compliance with the most recent remand. Entitlement to VA compensation benefits for residuals of right hip arthroplasty under the provisions of 38 U.S.C. § 1151 The Veteran seeks compensation under 38 U.S.C. § 1151 based on a failure to timely diagnose right hip avascular necrosis and failure to properly treat related to a November 1998 right hip arthroplasty. See June 2010 and May 2018 correspondence. The Veteran asserts that VA deviated from the standard of care in a multitude of ways, to include a faulty and recalled prosthesis, failure to provide physical therapy after the November 1998 surgery and an August 2004 revision, and failure to provide adequate treatment for complaints of pain following the November 1998 surgery. As to additional disability, the Veteran asserts that she suffered from nerve damage in the right leg, leg length discrepancy, need to undergo an August 2004 revision, a mass in her right hip, and confinement to a wheelchair. See December 1999, October 2005, and February 2006 correspondence. Pursuant to 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability as if such disability were service connected. For the purposes of this section, a qualifying additional disability is one that was not the result of a veteran’s own willful misconduct and one for which there is actual and proximate causation. To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before care, treatment, examination, or services, with the state of the condition after such actions have been completed. 38 C.F.R. § 3.361 (b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Id. § 3.361(c)(2). The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. Id. The proximate cause of a disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). This may be shown through two means: (1) 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, treatment, or examination; or (2) by an event not reasonably foreseeable. 38 C.F.R. § 3.361(d)(1), (2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, treatment, or examination proximately caused a veteran’s additional disability, it must be shown that the care, treatment, or examination caused the veteran’s additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or (ii) VA furnished the hospital care, treatment, or examination without the Veteran’s, or in certain cases a designated representative’s, informed consent. 38 C.F.R. § 3.361 (d)(1). VA treatment records indicate that the Veteran suffered from chronic right hip pain, in addition to other musculoskeletal pains. See June 1998 VA treatment records. As a result, the Veteran underwent diagnostic testing to include whole body imaging and right hip radiograph. See January 1998 and May 1998 VA treatment records. Testing was negative with no mention of the right hip in the whole-body imaging; the X-ray showed no acute bony or soft tissue abnormality in the right hip. Accordingly, the Veteran was given a diagnosis of right hip bursitis. The Veteran was also sent to follow up with rheumatology and orthopedics. See July 1998 VA treatment records. In October 1998 VA treatment records, imaging was ordered and showed avascular necrosis of the right hip. The Veteran underwent right hip arthroplasty in November 1998. In pre-discharge notes, the Veteran underwent physical therapy. In December 1998, imaging showed the right hip prosthesis in place with appropriate alignment and no acute abnormalities of the right hip. The same results were shown in March 1999 testing, to include whole body imaging. Although VA treatment records continued to show the Veteran’s complaint of pain, imaging showed time and again satisfactory condition of the implant without loosening. See February 2000, October 2000, and March 2001 VA treatment; see also March 2003 VA treatment records. VA treatment records also note continuing recommendations to the Veteran to follow up with neurosurgery to address the Veteran’s symptoms. See June 2003 VA treatment records. The Veteran also reported a 2000 motor vehicle accident with injuries to the back in January 2001 VA treatment records. In May 2004 private treatment records, imaging showed loosening of the prosthesis with failure at the bone cement interface. The clinician gave an impression of failed right hip total arthroplasty. In August 2004, the Veteran underwent a revision of the right hip arthroplasty. In January 2006 private treatment records, a partially calcified mass was identified in the right psoas muscle and a biopsy was ordered. Ultimately, although the January 2006 clinician noted that the Veteran’s surgical history indicates a relationship to the right hip total arthroplasty, the April 2006 treatment records indicate it was of unknown etiology and was likely an organized hematoma with un-concerning pathology. In VA imaging from December 2012, the Veteran was noted to have an oblong mass in the right hemipelvis which was partially calcified. Subsequently, a VA clinician indicated a relationship between the mass and the prior 2004 right hip arthroplasty. See December 2014 VA treatment record. The Veteran underwent a VA examination in May 2015. The examiner indicated that the evidence suggests the Veteran received excellent care in relation to the November 1998 right hip arthroplasty with follow up imaging showing a well aligned prosthesis. The examiner further indicated that the loosening was more likely related to the body habitus and stress put on the implant. In May 2017 the Board remanded the appeal for an addendum opinion noting that the May 2015 opinion failed to address the Veteran’s medical history to include the calcified mass, nerve damage, ongoing pain after the November 1998 surgery, and possible use of defective implant. The Veteran was afforded another VA examination in May 2018. The examiner opined that the Veteran had not suffered additional disability, to include nerve damage, prolonged pain in her right hip, leg, and foot, loosening of the prosthesis, and the development of a mass such as a calcified hematoma, or any other symptom as a result of the 1998 total right hip arthroplasty surgery. The examiner also determined that there was no carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA providers, nor was the Veteran’s complained of symptoms due to an event not reasonably foreseeable. The examiner further opined that based on his review of the medical records, he could not find any disability that was made worse or resulted from the VA treatment, or which could have been reasonably foreseen by the VA providers, or from the VA not providing reasonable standard of care. The examiner explained that multiple X-rays following the initial operation were normal, and chronic hip pain is common following surgery. He also noted that there seems to be no evidence of loosened hardware being overlooked as multiple X-rays post-surgery did not mention any loosening. The examiner also pointed out that the Veteran fell on her right hip three months after the surgery, although the initial post-fall X-rays were normal. The examiner also opined that there were no issues with the timeliness. He explained that follow up care and testing was provided in a timely manner, and the Veteran was also seeing non-VA providers during this time as well. In regard to the question of whether the Veteran developed a mass, such as a calcified hematoma, as a result of the 1998 total right hip arthroplasty surgery the examiner indicated that the etiology of the mass is still being evaluated and would require speculation at this time. He also indicated that to determine the exact cause of the Veteran’s right lower extremity pain would require speculation given her other medical conditions which include lymphedema and lumbar disc disease-both of which can cause such discomfort. Finally, the examiner indicated there was no evidence of a recall involving the prosthesis. Upon consideration of the evidence of record, entitlement to benefits under § 1151 is not warranted. The Board finds the Veteran does not have an additional disability due to VA hospital care, medical or surgical treatment or examination. More importantly, a claim based on a failure to timely diagnose or properly treat a disease requires that VA’s omission in such regard proximately caused the additional disability, and, in this instance, the Board finds that there was no actual causation. The May 2018 VA examiner provided a negative nexus opinion, which is highly persuasive. The examiner discussed VA treatment throughout the years, to include the treatment after the 1998 surgery, and her condition after VA treatment. The examiner gave due consideration to the Veteran’s medical history. In doing so, a cogent rationale was provided for this opinion. The medical evidence of record supports the examiner’s conclusions. Notably, the VA treatment records included numerous testing and follow up with specialty clinics to include orthopedics, both before the diagnosis of avascular necrosis and after the November 1998 surgery. The Board finds this opinion competent and probative evidence as to the claim. Although, the Veteran takes issue with the examiner’s qualifications, the examiner is a medical doctor and has the requisite level of familiarity necessary to evaluate the condition. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The evidence weighing in favor of the claim consists of the Veteran’s lay statements. However, at issue are medical questions which cannot be considered within the competence of a non-expert lay witness. Further, the Veteran has not asserted or shown that she has the requisite level of training, education or background necessary to evaluate the condition. As such, she can be recognized as having medical expertise upon which to competently base an opinion. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Lastly, the Board notes that although the private clinicians noted the failed right hip arthroplasty, the private clinicians did not offer an opinion on the matter of causation and the role of VA care. Thus, there is no competent and probative evidence contrary to the May 2018 VA examiner’s findings. In summary, the preponderance of the evidence weighs against the claim. As there is no doubt to be resolved, entitlement to compensation under 38 U.S.C. § 1151 for residuals of right hip arthroplasty is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel