Citation Nr: 21000277 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-27 180 DATE: January 5, 2021 ORDER Entitlement to compensation, under 38 U.S.C. § 1151, for surgery resulting in right peroneal nerve injury with right foot drop, due to sensory neuropathy (status-post surgery residuals) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his status-post surgery residuals were not the result of his willful misconduct; his disability was caused by surgical treatment at a VA hospital, and the proximate cause of his disability is due to lack of proper skill. CONCLUSION OF LAW The criteria for compensation, under 38 U.S.C. § 1151, for status-post surgery residuals have 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 March 1959 to February 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2013, the Veteran and his spouse, J.E., testified at a Travel Board hearing. A transcript of this hearing is of record. This matter was previously before the Board in July 2013 and January 2014. In January 2017, the Board denied the above-mentioned claim. Thereafter, the Veteran appealed the Board’s decision to the United States Court of Appeal for Veterans Claims (CAVC). After the parties stipulated to a remand in a joint motion for remand (JMR), CAVC, in an October 2017 order, vacated and remanded the Board’s decision for additional development, consistent with the JMR. In April 2018 and October 2019, the matter was remanded for additional development, consistent with the JMR. Compensation for Surgery Resulting in Right Peroneal Nerve Injury with Right Foot Drop, due to Sensory Neuropathy The Veteran asserts entitlement to surgery resulting in right peroneal nerve injury with right foot drop, due to sensory neuropathy, based on 38 U.S.C. § 1151. A veteran who is disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. An additional disability is a qualifying disability if: (1) it was not the result of the veteran’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination provided to the Veteran under any law administered by VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). To establish actual causation, the evidence must show that the VA treatment at issue resulted in the Veteran’s additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c). The Veteran contends that prior to November 2008, there was no problem with his knee, other than pain; and that his procedure was supposed to be a “piece of cake”, with 3 days in the hospital, 3 – 5 weeks in rehabilitation, and he would be back to normal. Further, he contended that his knee, after replacement, became loose, the cap also became lose, and they started making rattling noises if he moved them. He further explained that prior to his surgery, he never had a toe drop, and he also never had numbness in the foot or calf, but now, since his surgery, he does. He also stated that two days before his surgery, he was on an 8ft ladder, completing work, but since his surgery, he now has no confidence in his leg, and that if he sits on the floor to do something, he doesn’t know whether his knee will jump out or not. See January 2011 Notice of Disagreement. At his Board hearing, the Veteran reiterated that the surgeon told him that his surgical procedure would be a piece of cake. In pertinent part, he further testified that after his surgery, once VA medical staff realized that there was extensive nerve damage from the knee down, most notably in the foot drop, the surgery department blamed the anesthesia department, whereas the anesthesia department blamed the surgery department for this complication. See May 2013 Travel Board Hearing Transcript. As noted above, after the Board denied this claim in January 2017, the Veteran appealed this decision with CAVC. In the October 2017 JMR, the parties stipulated that in January 2014, the Board found a September 2013 medical opinion to be inadequate and remanded the claim for a new medical opinion; the new medical opinion, which was obtained in December 2015, was also inadequate, as it was nearly identical to the September 2013 medical opinion; and thus, it did not comply with the Board’s January 2014 remand directives, thereby violating the Court’s holding in Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand order). Accordingly, the Board remanded this claim in April 2018, pursuant to the CAVC JMR and Order, to obtain another medical opinion. In response to this remand, September 2018, April 2019, and July 2019 medical opinions were rendered. However, the Board found that the April 2019 and July 2019 opinions were also inadequate, and again, the matter was remanded in October 2019. Specifically, as the October 2019 Board remand noted, in pertinent part, that pursuant to the JMR, this appeal was remanded by the Board, in April 2018, for a medical opinion, and that the medical opinion “was requested to address, among other questions, whether the possibility of surgical negligence was foreclosed where the resultant disability was a known complication of the surgical procedure in question, a total knee replacement.” In this October 2019 remand, the Board noted that April and July 2019 opinions merely “reiterated that ‘peroneal nerve paralysis is a known complication of a [total knee replacement] when a pre-existing gap in the knee that is not adequately treated, and prosthesis is not of correct size.” The Board determined that the VA examiner provided conclusory statements without the requested supporting rationale, and that the examiner further raised additional questions by suggesting that the Veteran had a “pre-existing gap in [his] knee that [was] not adequately treated and [the] prosthesis [was] not of corrective size. In this regard, the Board determined that this statement, in and of itself, and without further clarification, only serves to complicate the medical questions before the Board. The Board instructed, in pertinent part, that the RO obtain a medical opinion from an orthopedic surgeon, or other qualified expert, to determine whether it is at least as likely as not (50 percent or greater probability) that the proximate cause of the Veteran’s unstable right knee resulted from 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 and subsequent follow-up care, or an event not reasonably foreseeable. In the remand directives, the Board specifically noted, in pertinent part, that for compliance with the JMR in this case, “if the examiner finds that the Veteran’s unstable right knee was the result of a known complication, the examiner is instructed to discuss whether the possibility of medical negligence, to include the surgery at issue as well as any aftercare, is foreclosed where the resultant disability is also a known complication of the surgical procedure.” Additionally, the remand directives instructed that the examiner address the question of whether the Veteran had a pre-existing gap in the knee; and that if the gap was not adequately corrected or if the prosthesis provided was too small, the VA examiner was to determine whether such lack of correction was due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of the VA. For these reasons, the RO has obtained another medical opinion on this matter. In this January 2020 opinion, a VA examiner opined that it is less likely than not the proximate cause of the Veteran’s unstable right knee resulted from carelessness, negligence, lack of proper skill, error in judgement, or similar instance or fault on the part of VA furnishing the hospital care, medical, or surgical treatment and subsequent follow-up care, or an event not reasonably foreseeable. In pertinent part, the VA examiner reasoned that based on limited documentation available, “knee instability following total knee arthroplasty is a common risk factor following knee replacement surgery.” However, this opinion does not clarify and/or address the question of whether the unstable right knee, which he described as a “common risk factor”, is a known complication, and if so, whether the possibility of medical negligence, to include the surgery, as well as any after care, is foreclosed. Although the VA examiner rendered a subsequent, additional opinion in January 2020, this opinion also failed to address all of the questions raised in the remand directives. In this opinion, the VA examiner initially indicated that he was not entirely clear on what the prior VA examiner was referring to, with his statement regarding “pre-existing gap in the knee,” even though the prior, July 2019 addendum VA opinion clarified that “peroneal nerve paralysis is a known complication of TKA [(total knee replacement)] when a pre-existing gap in the knee is not adequately treated and prosthesis is not correct.” Additionally, this January 2020 VA opinion further noted that the Veteran “presumably could have had an increased lateral joint space noting there was a fair amount of varus deformity as described in the operative report of November 14, 2018.” (Emphasis supplied). He further noted that the varus deformity could result in an increased lateral joint space interval in the opposing compartment and, “if this is in fact what [(“the VA examiner)] is referring to as ‘pre-existing gap in the knee’, it is [his] opinion this has been adequately treated by way of the right knee total arthroplasty.” The VA examiner further reasoned that after the Veteran’s November 2018 arthroplasty, there are X-rays taken on different occasion, which indicate that the prosthesis is in good alignment with no further varus deformity of the knee following the right knee arthroplasty, and that absent the varus deformity, the “knee gap” in the opposing compartment would have been corrected. He also indicated that there is no indication that the prosthesis is not sized appropriately, there is only slight limitation of motion with flexion, no evidence of loosening, malalignment, or malrotation of the prosthesis in any of the post-operative X-rays, and that by all accounts, the prosthesis without evidence of wrong sizing. Despite this rationale, however, this opinion is not responsive to the questions presented in the remand directives, and crucially, whether the unstable right knee is a known complication, and if so, whether the possibility of medical negligence, to include the surgery, as well as any aftercare, is foreclosed. Additionally, the VA examiner rendered a speculative rationale, given that he indicated that he was not entirely clear what the prior examiner was referring to, in his statement regarding “pre-existing gap in the knee”, and given that he rendered an opinion based on the assumption that the VA examiner was referring to a varus deformity, whereas the prior examiner clarified that he was referring to peroneal nerve paralysis, which he defined as “a known complication of TKA when a pre-existing gap in the knee is not adequately treated and prosthesis is not correct. Thus, the January 2020 VA opinions are also inadequate for determining this claim. Nonetheless, after a review of all probative evidence, of record, the Board has considered whether the Veteran is entitled to compensation, under Section 1151, for status-post surgery residuals, by evaluating each of the 3 criteria for compensation. Specifically, the Board finds that the first criteria is met, because the evidence has not shown, nor is there any finding, that the result of the Veteran’s disability was a result of his own willful misconduct. The second criterion requires that the disability was caused by VA hospital care, medical or surgical treatment, or examination provided to the Veteran under any law administered by VA. This criterion is also met and is not in dispute. Specifically, for example, a November 2008 operation report from VA Medical Center, Hines Illinois, reflects that the Veteran underwent a procedure for right total knee arthroplasty. Additionally, an August 2009 physical therapy note acknowledges that the Veteran was being seen for status-post total knee arthroplasty, which is complicated by foot/drop/numbness. Additionally, according to the Veteran’s competent, credible statements from his January 2011 notice of disagreement, he indicated he never had a toe drop or numbness in his foot and/or calf, prior to this surgery. Thus, there is no dispute that the Veteran’s disability was caused by VA surgical treatment. The third and final criterion requires that the proximate cause of the Veteran’s disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instances on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In this regard, the Board notes that while the January 2020 medical opinions indicated that a foot drop and joint subluxation/knee instability are common risk factors of total knee replacement, the April and July 2019 medical opinion indicated that an unstable knee can be a complication of total knee replacement if a pre-existing gap is not adequately corrected, or if the prosthesis is not the correct size or if the collateral ligament is injured during surgery. Contrary to the April 2019, July 2019, and January 2020 negative medical opinions, however, is a September 2018 positive medical opinion. Specifically, in this opinion, a VA examiner opined that it is at least as likely as not that the Veteran is entitled to compensation benefits under provisions of 38 U.S.C. § 1151 for surgery for right peroneal injury and right foot drop. As the rationale for this opinion, the VA examiner reasoned that the Veteran did not have a right peroneal nerve injury and a right foot drop prior to his surgery. The VA examiner further opined that the Veteran’s unstable right knee resulted from a lack of proper skill on the part of VA in providing surgical treatment, reasoning that the Veteran did not have unstable knee before surgery, but rather, he had it after his surgery. Notwithstanding, none of these opinions are responsive to the Board’s remand directives, given that they consistently failed to determine, with a clear, sufficient rationale, whether the possibility of medical negligence, including surgery and aftercare, is foreclosed when the resulting disability is a known complication of surgery. As a mater of fact, a determination as to whether the Veteran’s resulting disability is a known complication of his knee replacement surgery is inconsistent and/or unclear between these medical opinions. In this regard, the Board has considered other probative evidence, including and not limited to, the competent, credible, lay statements of the Veteran. Particularly, for example, and as indicated above, the Veteran noted that he did not have a toe drop and/or numbness in his leg or calf until after his surgery. Further, and to reiterate, the medical evidence has not made it consistently clear as to whether his disability is a known complication of total knee replacement surgery. Nonetheless, at his hearing, he stated that after his surgery, once VA medical staff realized that there was extensive nerve damage from the knee down, most notably in the foot drop, the surgery department blamed the anesthesia department, whereas the anesthesia department blamed the surgery department for this complication. Therefore, the Board finds that the evidence is in at least relative equipoise, and by resolving all reasonable doubt in favor of the Veteran, the third criterion is met; his status-post surgery residuals are is the result of a lack of proper skill on the part of VA. The Board particularly notes and acknowledges that the most recent, January 2020 VA opinion and addendum opinion failed to comply with the January 2018 Board remand, and as a general rule, this matter would require a remand for an adequate medical opinion. See Stegall, 11 Vet. App. at 271. However, in this particular instance, a remand is not required, as the decision on this matter is favorable, and it will not prejudice the Veteran. Therefore, based on the foregoing reasons, and by resolving all reasonable doubt in favor of the claim, compensation, under 38 U.S.C. § 1151, for status-post surgery resulting in right peroneal nerve injury with right foot drop, due to sensory neuropathy, is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.