Citation Nr: 19152201 Decision Date: 07/05/19 Archive Date: 07/05/19 DOCKET NO. 18-04 624 DATE: July 5, 2019 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a total right hip replacement is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a right hip disability, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Air Force from August 1968 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (AOJ) in April 2015 and in November 2015. The Veteran’s Form 9 indicates that he requested permission to submit a letter brief in lieu of a Board hearing, and that such letter brief was submitted by the Veteran’s representative in June 2019. 1. The claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of a total right hip replacement is remanded. Unfortunately, the Veteran’s claim for compensation under 38 U.S.C. § 1151 for residuals of a total right hip replacement must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that his current right hip disability is causally related to two right hip surgeries performed at a VA facility in August 2012. In April 2015, a VA examination report concluded that, based upon a review of the Veteran’s claims file, it is less likely than not that the Veteran’s current right hip disability was caused by or became worse as a result of the following: (1) the VA treatment at issue; (2) any carelessness, negligence, lack of skill, or similar incidence or fault on the part of the attending VA personnel; (3) an event that could not have reasonably been foreseen by a reasonable healthcare provider; or (4) the failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability. The April 2015 VA examination report further stated that such opinion was based upon the following rationale: (1) the Veteran’s surgery was done for the proper indication; (2) proper informed consent was obtained; and (3) the treatment notes included in the report indicate that the complication of dislocation, though unfortunate, was not related to any negligence or delay on the part of the surgical team. The April 2015 Report subsequently included select portions of the Veteran’s VA treatment records pertaining to his August 2012 right hip surgeries. However, the April 2015 Report did not address the Veteran’s VA surgical treatment records in their entirety, including the following: (1) an August 2012 notation indicating that the Veteran suffered from extreme post-operative pain and swelling after his first right hip surgery performed by the VA orthopedic surgeon (Dr. B); (2) a three-page summary of the Veteran’s second August 2012 right hip surgery also performed by Dr. B; and (3) an October 2012 VA treatment note describing the residuals of the Veteran’s August 2012 right hip surgeries, including limited range of motion, weakness, limited movement, and reliance on a cane. In November 2015, the April 2015 VA examiner issued a subsequent addendum opinion in response to new evidence submitted in May 2015 and September 2015. The November 2015 Addendum Report repeated the same negative nexus opinion but supplemented the April 2015 rationale with the statement that an August 20, 2012 surgical note indicated that x-rays revealed a dislocated right total hip arthroplasty with an anterior dislocation. However, while the November 2015 Addendum Report referenced Dr. B’s three-page summary of the Veteran’s second right hip surgery, it did not address either (1) the August 2012 notation indicating that the Veteran suffered from extreme post-operative pain and swelling after his first right hip surgery by Dr. B; or (2) the October 2012 VA treatment note describing the residuals of the Veteran’s two right hip surgeries, including limited range of motion, weakness, limited movement, and reliance on a cane. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that a medical opinion report sufficiently inform the Board of a medical expert’s judgment on a medical question, rely upon accurate factual premises, including the Veteran’s lay statements regarding symptomatology and the relevant medical evidence of record, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, not only do both the April 2015 and the November 2015 VA opinions fail to address relevant medical evidence of record, but each also relies upon conclusory statements. See Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, the Veteran’s right hip disability claim must be remanded for an additional medical opinion to determine whether the Veteran’s current right hip condition warrants compensation under 38 C.F.R. § 1151. See Barr, 21 Vet. App. at 311. Moreover, due to the heightened level of medical complexity and controversy involved in the Veteran’s claim, the Board concludes that the issues involved in this case warrant an advisory medical opinion rendered by an independent medical expert. See 38 U.S.C. § 5109. Thus, upon remand, the AOJ shall obtain an advisory medical opinion from an independent medical expert as set forth in the directives below. See id. 2. Entitlement to compensation for a left hip disability, to include as secondary to a right hip disability, is remanded. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The Board recognizes that any decision regarding the Veteran’s right hip disability claim being remanded herein may impact the Veteran’s left hip disability claim. The decision regarding the bilateral hip claims may impact the claim for TDIU. Therefore, consideration of such claims must be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these matters are REMANDED for the following action: 1. Obtain from the VA healthcare system all outstanding relevant treatment records of the Veteran, to include all informed consent documents related to the two right hip surgeries performed in August 2012 at a VA facility in Florida. All records/responses received should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Obtain any other relevant outstanding private or VA treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. After the above development and any additionally indicated development has been completed, obtain an addendum opinion as to the etiology of the Veteran’s right hip disability. Due to the complexity and controversy of this claim, this opinion must be obtained by an appropriate specialist pursuant to 38 U.S.C. § 5109. An examination of the Veteran is only necessary if deemed so by the examiner. The examiner selected must have the appropriate expertise and be provided access to the electronic claims file. The resulting medical report should specifically state that a review of the record was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a) Whether the Veteran sustained an additional disability, including but not limited to pain, weakness, limited range of motion, limited movement, and reliance on a cane as a result of his August 14, 2012 total right hip replacement. b) Whether the Veteran sustained an additional disability, including but not limited to pain, weakness, limited range of motion, limited movement, and reliance on a cane as a result of his August 20, 2012 total right hip replacement. c) If additional disability is found from either of the two events listed above, the examiner is asked opine whether that additional disability was a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. e) If additional disability is found from either of the two events listed above, the examiner is asked to opine whether that additional disability was reasonably foreseeable. The examiner’s attention is drawn to the following: (i) VA treatment notes dated August 2012 indicating that the Veteran suffered from extreme post-operative pain and swelling after his right hip surgery on August 14, 2012; (ii) VA treatment notes reflecting that a second right hip surgery was performed on August 20, 2012; and (iii) an October 2012 VA treatment note describing the residuals of the Veteran’s two right hip surgeries, including limited range of motion, weakness, limited movement, and reliance on a cane. The examiner is requested to include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. 4. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hannah Marsdale, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.