Citation Nr: 20000077 Decision Date: 01/02/20 Archive Date: 01/02/20 DOCKET NO. 13-07 888 DATE: January 2, 2020 ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for trunk and hip instability is granted. REMANDED Entitlement to compensation benefits under 38 U.S.C. § 1151 for additional disabilities resulting from the Veteran’s left hip surgery, to include pressure ulcers, autonomic dysreflexia, bowel and bladder conditions, hypotension, impotence, and hypotension, is remanded. FINDINGS OF FACT 1. The Veteran underwent hip surgery in May 2011 that resulted in trunk and hip instability. 2. The Veteran’s instability of the trunk and hip was not a reasonably foreseeable result of the surgery to which he consented. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for instability of the left hip have been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from July 1976 to November 1980. This matter comes before the Board of Veterans’ Appeals (Board) from the January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran appeared at a June 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in August 2017 and was remanded for further development. The Veteran contends that his May 2011 left hip surgery resulted in additional disability that he did not consent to and that was not reasonably foreseeable. The records reflect that prior to the Veteran’s surgery, he was a tetraplegic and had heterotopic ossification in the area of his left hip which caused ankylosis of his left hip joint. On May 31, 2011, the Veteran underwent surgery for a left hip disarticulation and left hip heterotopic ossification excision. Subsequently, in February 2012, he reported that he had periods of hypotension and tunnel vision, as well as more frequent incontinent events and impotence. Specifically, the Veteran stated that prior to his surgery, he experienced incontinence once every 60 to 85 days and since the surgery, the longest he has been able to go without an involuntary bowel movement is 23 days. Additionally, at the Veteran’s Board hearing, he testified that he now has bowel and bladder problems (the record reflects that neurogenic bowel and bladder problems have been diagnosed). Furthermore, the Veteran contends that prior to his surgery he did not consent to, nor did he discuss with his physician the possibility of removing part of his femur. However, during the Veteran’s surgery, the physician removed a large portion of the Veteran’s femur. As a result, the Veteran states that now he does not have adequate stability as his femur bone is not present to stabilize his trunk when he is in a sitting position in his wheelchair. This has resulted in the Veteran falling out of his wheelchair. The Board finds that entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for instability of the left hip is warranted. Entitlement to compensation for additional disabilities resulting from the Veteran’s left hip surgery, to include pressure ulcers, autonomic dysreflexia, bowel and bladder conditions, hypotension, impotence, and hypotension, are discussed below in the remand section. The VA consent for treatment form dated in May 2011 reflects that the plan was that “The surgeon will make an incision surgical cut) to expose the proximal femur (top of the thigh bone). The bone will be cut and realigned to change the angle at which the thigh bone meets the hip joint. The surgeon will secure the bone in its new position with hardware (plates, pins screws, or wire) if necessary and close the incision with stitches or staples.” Infection that may require antibiotics (drugs that A June 2013 memorandum from VA physician, Dr. Crossley, states that on May 31, 2011, the Veteran underwent an elective procedure to remove heterotopic bone and the proximal part of the left femur. However, due to the extensive heterotopic bone formation, a large portion of the proximal femur needed to be removed to restore full range of motion to the Veteran’s hip. The memorandum stated that post-operatively, the Veteran has experienced instability of the hip that has negatively impacted his function. Specifically, the physician stated that because the Veteran’s femur no longer restricts forward flexion of the trunk, there is a change in the Veteran’s trunk stability with sitting. The physician cited at least one fall due to this instability and the necessity of special wheelchair adaptations to maintain normal trunk alignment and to prevent pressure sores. Additionally, the physician stated that the Veteran is limited in his opportunity to travel outside of his home as he no longer feels safe performing transfers using an assisted manual pivot transfer, and must now use a mechanical lift, which is not always convenient or available. The physician concluded by stating that he supported the Veteran’s application for benefits under 38 U.S.C. § 1151. Additionally, an August 2018 letter from the Veteran’s VA spinal cord physician stated that the informed consent for the Veteran’s May 2011 surgery did not outline the potential complications and increased risk for falls from a seated position. The physician also noted that the Veteran reported worsening difficulties with trunk stability. The physician concluded that it is at least as likely as not that the “excessive removal of femur bone” during the Veteran’s May 2011 surgery resulted in additional disability, as the femur does not restrict forward flexion of the Veteran’s trunk. Thereby, based on the evidence of record, the Board finds that the Veteran’s instability of the trunk and hip was not a reasonably foreseeable result of the surgery to which he consented. Therefore, entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for trunk and hip instability is warranted. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). As discussed above, an August 2018 letter from the Veteran’s VA spinal cord physician stated that the informed consent for the Veteran’s May 2011 surgery states that the overall goal of the surgery was to change the alignment of the thigh bone to relieve stress at the hip joint and did mention shortening the bone. However, the physician states that the consent form did not outline the potential complications of asymmetric sitting, such as atypical pressure areas susceptible to pressure ulcers, and autonomic dysreflexia. Following the surgery, the physician noted that the Veteran developed pressure ulcers and autonomic dysreflexia. Although the physician attributed the Veteran’s additional disabilities solely to the removal of the Veteran’s femur bone, he did not state whether or not this event was due to carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable. A March 2016 VA examination concluded that it is less than likely that the Veteran incurred additional disabilities as a result of his May 2011 surgery in the form of hypotension, tunnel vision, impotence, neurogenic bowel, and/or neurogenic bladder condition. Additionally, the examiner noted that it is less than likely that the VA treatment was careless, negligent, exhibited lack of proper skill or error in judgment or was otherwise at fault. Finally, the examiner stated that it is less than likely that the conditions listed above as additional disabilities were due to an event that is not reasonably foreseeable. The examiner provided rationales for all of these opinions. Although the examiner discussed the Veteran’s contentions regarding his neurogenic bowel conditions following his May 2011 surgery, the examiner stated that the Veteran’s bowel condition did not worsen in “a clear temporal relationship to the surgery.” However, at the Veteran’s Board hearing he specifically stated that his incontinence issues worsened following his May 2011 surgery. Additionally, the examiner stated that the Veteran’s bowel incontinence varies with the Veteran’s diet, “indicating his symptoms are more likely physiological in origin and less likely related to the 2011 surgery.” However, the Veteran testified that he attempted to modify his diet to alleviate this condition to no avail. Therefore, the Board finds the March 2016 VA opinion inadequate as it does not appear to have considered the Veteran’s lay testimony in its formation. Therefore, on remand, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the VA examiner who provided the March 2016 VA opinion. If this examiner is unavailable, another qualified medical professional may provide this opinion. A copy of Veteran’s claims file, to include a copy of this remand, must be made available for review. Following a thorough review of all the medical and lay evidence of record, a medical professional must state: a) Whether it is as least as likely as not (50 percent or greater probability) that any additional disability resulting from removal of a large portion of the Veteran’s femur, to include, pressure ulcers, autonomic dysreflexia, bowel and bladder conditions, hypotension, impotence, and hypotension, were the direct result of VA carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA. b) Whether it is at least as likely as not (50 percent probability or higher) that any additional disability resulting from removal of a large portion of the Veteran’s femur, to include pressure ulcers, autonomic dysreflexia, bowel and bladder conditions, hypotension, impotence, and hypotension, were proximately caused by an event not reasonably foreseeable. The examiner should specifically address whether any of the foregoing were caused or aggravated by the left hip instability for which compensation has been granted under 1151. A complete rationale for all opinions rendered must be fully explained with a discussion of the pertinent evidence of record, as well as the medical principles involved, which led the medical professional to his or her conclusion. If the medical professional cannot provide a medical opinion without resorting to speculation, he or she must indicate why this is so. A new medical examination is only required if the medical professional providing the medical opinion finds one is necessary. 2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.