Citation Nr: 19115481 Decision Date: 03/01/19 Archive Date: 03/01/19 DOCKET NO. 16-04 123 DATE: March 1, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right hip replacement surgery is denied. FINDING OF FACT The Veteran did not experience any additional disabilities from right hip replacement surgery due to any fault of a VA medical center (VAMC) in August 2009 when it conducted 2 additional right hip surgeries because the Veteran’s residual disabilities are known complications of total hip replacement surgery and the Veteran demonstrated risk factors that increased the likelihood of developing complications. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for VA treatment of residuals of right hip replacement surgery have not been met. 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1972 to July 1973. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right hip replacement surgery as a result of treatment at a Department of Veterans Affairs medical facility in August 2009 When a veteran suffers additional disability as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. See 38 U.S.C. § 1151; 38 C.F.R. § 3.358 (a). For claims, as here, filed on or after October 1, 1997, the Veteran must show that the VA treatment in question resulted in additional disability and, further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; see VAOPGCPREC 40-97 (Dec. 31, 1997). In determining whether additional disability exists, the Veteran’s physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to his condition after such treatment, examination or program has stopped. See 38 C.F.R. § 3.361 (b). Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. See 38 C.F.R. § 3.361 (c) (1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the Veteran’s informed consent. See 38 C.F.R. § 3.361 (d) (1). Proximate cause may also be established where the Veteran’s additional disability was an event not reasonably foreseeable; a determination 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32 (2016)). See 38 C.F.R. § 3.361 (d) (2). Determinations as to whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361 (d) (1). Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2011). The Veteran underwent total right hip replacement surgery at the Bronx, New York, VA medical center (VAMC) in August 2009. Subsequent complications resulted in 2 additional surgeries and post-surgery complications, including psoas muscle impingement and leg length discrepancy. At the February 2011 VA medical examination for joints, the examiner noted the Veteran demonstrated complications from the initial hip surgery that resulted in hospitalization and 2 additional surgeries. The examiner noted the Veteran currently endorsed pain and gait dysfunction. The examiner opined that while the claimed disabilities constituted an event not reasonably foreseeable, the disabilities were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing hospital care, medical or surgical treatment, or examination. At the October 2011 VA medical examination, a Veteran reported returning to the hospital one week after the initial surgery due to severe pain. The hospital noted the right hip had dislocated, and the Veteran underwent revision surgery. During the subsequent hospitalization, the Veteran developed a pulmonary embolism, and was discharged to a rehabilitation facility. The Veteran reported residual disabilities of constant hip pain from psoas muscle impingement, leg length discrepancy, a sprained left ankle and right knee due to an abnormal gait while waiting for orthotic shoes, and possible carpal tunnel in his wrists. The examiner noted residuals disabilities of leg inequality, and chronic hip pain from a prosthetic hip cup that was possibly impinging on the psoas muscle. The examiner opined that a review of the Veteran’s chart notes did not indicate the VA was careless and negligent, or lacked proper skills and lacked error in judgment from a medical stand point for the procedure undertaken. In December 2011, the same examiner explained that the Veteran’s leg length discrepancy and other complications were known complications of the hip replacement procedure, and were not due to VA fault or malpractice. In February 2014, the Veteran settled a Federal Tort Claim against the United States (US) Government for $400,000 for these residual disabilities. The stipulation and settlement order indicate the Veteran releases the US government, and any agency, from any and all claims and liabilities arising directly or indirectly from the circumstances or incidents giving rise to the lawsuit. In September 2014, a different VA examiner reviewed the Veteran’s claims file and opined the Veteran’s residual disabilities were not due to carelessness or negligence of the VA or to an event that was not reasonably unforeseeable. The examiner noted the Veteran was blind, morbidly obese, and smoked 1-2 packs per day, and that he was counseled on which activities and exercises to avoid in order to lessen the risk of prosthesis dislocation. The examiner noted that after a review of the medical records, the Veteran demonstrated an issue with compliance with physical therapy directives, highlighting multiple prosthesis dislocations. The examiner opined the Veteran’s disabilities were due to well-established complications of hip replacement surgery and that the Veteran’s risk factors increased the likelihood of having complications. After a review of the medical and lay evidence, the Board finds the weight of the evidence is against finding that the Veteran’s leg length discrepancy and pain due to possible psoas muscle impingement were proximately 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 that the claimed disabilities were the result of an event that was not reasonably foreseeable because the Veteran’s residual disabilities are known complications of total hip replacement surgery and the Veteran demonstrated risk factors that increased the likelihood of developing complications. The September 2014 VA examiner’s opinion is well-supported by the record and medical knowledge. Her conclusion that the Veteran’s residuals disabilities were known complications of hip replacement surgery and the Veteran demonstrated risk factors that contributed to the development of complications is based on a review of the Veteran’s entire claims file. In addition, no other medical professional has provided an opinion indicating that VA was careless, negligent, lacked proper skill, erred in judgment or had other fault that ultimately resulted in the Veteran having an additional disability. Though the Veteran is competent to provide lay testimony regarding the symptoms he has observed, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in a disability following his right hip replacement surgery. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Since there is no probative medical evidence that indicates the Veteran demonstrates an additional disability that was the result of carelessness, negligence, lack of proper skill, error in judgment, a similar instance of fault on the part of the VA, or an event not reasonably foreseeable, the claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of right hip replacement surgery is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel