Citation Nr: 19189893 Decision Date: 11/27/19 Archive Date: 11/27/19 DOCKET NO. 16-04 448 DATE: November 27, 2019 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right hip replacement is granted. FINDING OF FACT 1. The Veteran was referred to a non-VA medical provider, where he underwent a March 2008 right hip replacement. 2. The additional disability incurred as a result of the March 2008 surgery was the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of a right hip replacement have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1966 to February 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a right hip replacement The Veteran seeks compensation under 38 U.S.C. § 1151 for the residuals of a right hip replacement. Specifically, the Veteran contends that he was referred by a VA practitioner to a non-VA medical provider, where he underwent a right hip replacement. The Veteran further contends that the right hip prosthetic caused additional disability, that the prosthetic was eventually recalled, and ultimately removed. 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. The Board notes that a claim for compensation under 38 U.S.C. § 1151 must, as a threshold matter, be based on treatment or care “provided by VA,” which is further defined as services that were either provided by a VA employee or performed in a VA facility. 38 U.S.C.§ 1151 (a)(1). The implementing regulation, 38 C.F.R. § 3.361 (f), further provides that treatment or care furnished either (a) under a contract made under 38 U.S.C.§ 1703 (authorizing VA to contract with a non-VA provider for medical service to veterans when VA is not capable of furnishing the care required) or (b) under 38 U.S.C. § 8153 (concerning sharing of health-care resources) in a facility over which the Secretary does not have direct jurisdiction are not treatment furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151 (a)(1). Consequently, in this case, the Veteran’s surgery, which was contracted for with a non-VA provider, is not considered care furnished by VA for the purpose of receiving compensation under 38 U.S.C.§ 1151. Nonetheless, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recognized that a claimant may succeed under a referral theory pursuant to section 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of section 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38U.S.C.§1151 (a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant §1151(a)(1)(B) as an event not reasonably foreseeable. More specifically, the Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under §1151(a)(1)(B), §1151(a)(1) requires that VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Court further held that §1151(a)(1)(B) also requires that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. In this case, under the holding in Ollis, compensation benefits may be granted pursuant to §1151(a)(1)(B) for additional disability caused by an event that is not reasonably foreseeable if it is determined that (1) VA medical care proximately caused the Veteran’s right hip replacement surgery in March 2008 (i.e., that a VA practitioner recommended that the Veteran have the surgery performed), (2) an “unforeseeable event” occurred, and (3) the unforeseeable event proximately caused the Veteran’s additional disability of residuals of the right hip replacement. The Veteran asserts that a physician at the Salisbury VA Medical Center recommended he have the right hip replacement surgery and he was referred on a fee basis to Catawba Valley Medical Center, where the right hip replacement surgery was performed. A January 2008 VA treatment record and a January 2008 VA Request for Outpatient Services show that the Salisbury VA Medical Center recommended he have the right hip replacement surgery. Moreover, March 2008 Catawba Valley Medical Center records show that the Veteran underwent right hip replacement surgery at the Catawba Valley Medical Center by way of a pre-operation report and the first post-operation visit notes. Thus, the evidence is sufficient to show that VA medical care proximately caused the Veteran’s right hip replacement in March 2008, as the procedure was recommended by a VA practitioner and referred on a fee basis. In this case, the evidence also demonstrates that an unforeseeable event occurred. The Veteran was afforded a VA medical opinion in July 2019. The examiner noted that the Veteran’s right hip replacement surgery in March 2008 was uneventful, with no complications, and that his condition significantly improved. However, the examiner also noted that the Veteran was eventually made aware that his Depuy ASR Hip prosthesis had been recalled due to complications such as failure of the hip replacement system as component loosening, component malalignment, infection, fracture of the bone, dislocation, metal sensitivity, and pain. The examiner further stated that this was not reasonably foreseeable, as there was no way of knowing that the prosthetic would be recalled. Finally, the evidence supports a finding that the unforeseeable event proximately caused the Veteran’s additional disability of residuals of the right hip replacement. The July 2019 examiner opined that it is at least as likely as not that the Veteran sustained additional disability, to include residuals of the right hip surgery, as a result of the March 2008 right hip surgery conducted at Catawba Valley Medical center. She noted that the Veteran developed pain, metallosis, and infection, for which he underwent chronic antibiotic treatment. The examiner also noted that the prosthesis had to be withdrawn in July 2014, resulting in the Veteran developing severe muscle damage and blood clots. (Continued on the next page)   In sum, the evidence of record shows that VA medical care proximately caused the Veteran’s right hip replacement surgery in March 2008; that an unforeseen event occurred, in that the Veteran’s prosthetic hip was highly problematic and ultimately recalled; and that the unforeseen recall and removal of the hip caused additional disability. Accordingly, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 for residuals of a right hip replacement is warranted. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.