Citation Nr: 21069007 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-51 136 DATE: November 17, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right hip surgery in July 2013 and December 2013 is denied. FINDING OF FACT The Veteran does not have additional disability due to right hip surgery resulting from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, nor was such disability proximately caused by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability as due to right hip surgery by VA in July 2013 and December 2013 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2015 rating decision of a Regional Office/Agency of Original Jurisdiction (RO/AOJ) of the Department of Veterans Affairs (VA). In February 2019, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In June 2019, the Board denied entitlement to compensation under 38 U.S.C. § 1151 for right hip surgery in July 2013 and December 2013. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In July 2020, the Court granted a Joint Motion for Remand (JMR), vacated the June 2019 decision and remanded the case to the Board for action consistent with the terms of the JMR. In the JMR, the parties agreed that remand was warranted for the Board to obtain a VA medical opinion and complete treatment records, to include reports of private neurosurgical and orthopedic consultation. Accordingly, in March 2021, the Board remanded the appeal for additional development necessary to ensure compliance with the JMR granted by the Court. After review of the development accomplished by the AOJ, the Board concludes there has been substantial compliance with the March 2021 Board remand and the deficiencies forming the basis for the JMR granted by the Court have been corrected. Thus, no further action is necessary as to this appeal. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Entitlement to Compensation Under 38 U.S.C. § 1151 The Veteran contends that compensation is warranted under 38 U.S.C. § 1151 for his right hip replacements which were performed at the Seattle, Washington, VA Medical Center (VAMC). He underwent right hip replacement on July 30, 2013 and revision of right hip replacement on December 20, 2013. Specifically, he claims he has chronic pain, a leg length discrepancy and a permanent limp due to "great complications" resulting from the right hip surgeries. He claims he is unable to walk without experiencing severe pain and must use a cane and/or a wheelchair all the time. He also reports being unable to lift his leg to get into a car or while getting dressed. See, e.g., May 2015, VA Form 21-4138, Statement in Support of Claim, April 2016 and two September 2021 statements describing the results of his hip replacement surgeries, October 2016 VA Form 9 and February 2019 Board hearing testimony. A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability... were service-connected" if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361(c). 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)(1). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 examination; or (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be "caused by" the hospital care or medical treatment received from VA, but also must be "proximate[ly] cause[d]" by VA's "fault" or an unforeseen "event." 38 U.S.C. § 1151(a)(1). The Veteran is competent to provide evidence of symptoms and experiences observable by his senses; however, he is not competent to determine the cause of his right hip disorder or discuss the medical standard of care, as this requires specialized medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA treatment records show the Veteran underwent right direct anterior hip arthroplasty on July 30, 2013. There were no surgical complications (he was transferred to MICU due to renal insufficiency and hyperkalemia which were noted as resolved on August 2, 2013) and was noted to have "recovered well" in November 2013, 3 1/2 months after the surgery; however, in December 2013, the Veteran reported "doing 'bad'" with persistent right thigh pain in the past month and a half. Imaging showed displaced prosthesis, the assessment was "subsidence of his stem" and revision of THR (total hip replacement) was scheduled for December 20, 2013. On December 20, 2013, the Veteran underwent revision right THA (total hip arthroplasty). He did well post-operatively and January 2014 follow-up treatment records note his antecedent thigh pain had resolved. February and March 2014 follow-up examination, he reported "doing extremely well" and being "very happy with the results." In April 2014, the Veteran reported being able to transition off of his cane the last two months, did not require a cane for ambulation, wanted to return to work and was released to return to work (lifting no more than 25 pounds). The consent forms in connection with the July and December 2013 right hip surgeries show the Veteran was informed of the potential risks of surgery. The July 2013 consent form specifically notes that the Veteran was "aware of risk of surgery: infection, pain, bleeding, revision surgery, persistent pain, dislocation, clots, MI [myocardial infarction], stroke, death. He signed consent." The December 2013 consent form specifically notes "risks discussed include bleeding pain infection damage to healthy and normal structure including bone, muscle nerve and vessels, poss[ible] longer hospital stay, further operations, long abx [antibiotics] use, DVT [deep vein thrombosis], damage to internal organs. [Patient] signed consent at bedside." In June 2014, the Veteran reported being "very dissatisfied with the result, has a leg length discrepancy and renewed groin pain." He indicated he was "talking to a lawyer about litigation against orthopedics." A June 2014 Orthopedic Surgery Outpatient Note notes the Veteran's pain complaints appear "to be mostly soft tissue and consistent with incomplete rehabilitation and hip abductor weakness. Also, likely contributing to this is poor gait" (lengthening of the Veteran's cane resulted in subjective improvement of his symptoms). A May 2015 VA Orthopedic Surgery Outpatient Note notes examination of the right thigh showed a well-healed surgical incision, pain in his anterior and proximal thigh with resisted hip flexion when laid supine and inability to tolerate any degree of resisted or passive hip abduction. X-ray showed "a well-implanted total hip arthroplasty, without any evidence of radiographic loosening or failure, or any radiographic findings that would explain his hip pain." The examiner commented that there was "nothing radiographically that would explain his hip symptoms. However, it is clear that the patient has quite a bit of disability, as well as chronic and severe pain." The examiner also noted that the Veteran's "lateral thigh pain is possibly related to trochanteric bursitis." He was given a corticosteroid injection and experienced 50 percent pain relief after 2 hours. A November 2015 statement from a VA primary care physician notes diagnoses of "chronic right hip pain, status post a right total hip anterior approach arthroplasty followed by revision for loosening" and "acquired right leg length discrepancy, post-surgical" after review of the Veteran's chart. August 2018 private treatment records note examination of the Veteran's right hip revealed a well healed incision for anterior approach, no visible atrophy and pain with maximum flexion of the hip, over greater trochanter to palpation and anterior thigh with resisted hip flexion. The examiner summarized that the Veteran had "chronic pain following revision R THA (right total hip arthroplasty) without clear etiology." Potential sources of the pain were "likely multi-factorial." Although the Veteran had a negative infectious workup, there was "a potential that a chronic, non-virulent infection may be contributing to his pain." The examiner also noted "muscular/tendinous/soft tissue contributions to his pain." The examiner opined that it is "very unlikely that component loosening is causing his current symptoms" and the "leg length discrepancy that he notices is also unlikely to be causing such significant pain in the hip." The examiner discussed with the Veteran that "the literature suggests that as many as 10-20% of hip replacement patients have persistent pain and/or persistent limitations even after full recovery, and that we may not find an etiology for this pain." A November 2018 VA treatment report notes the Veteran's right hip/leg pain is a combination of greater trochanteric bursitis (improved with bursitis injection) and right lumbar radiculopathy. VA treatment records note the Veteran's continued struggle with right hip and thigh pain and problems with ambulation. See, e.g., January 2019 VA treatment record noting the Veteran was in a wheelchair and reported steady decline in functional mobility over past 2 months, he "is now unable to walk without help" because his "legs are not working," and August 2019 Discharge Summary (in connection with unrelated treatment) noting the Veteran's history included 2 right hip surgeries in 2013. First surgery was "very successful, but several months later the implant became loose and required revision" and, since the second December 2013 surgery, the Veteran had experienced "pain in the right hip which is getting progressively worse." See, also, August 2021 VA treatment report noting the Veteran was "in a wheelchair at baseline and only able to take a few steps without assistance due to problems with his bilateral hip replacements." During his February 2019 Board hearing, the Veteran testified that his right hip "started hurting really, really bad" about 3 months after the surgery and his doctor had not informed him that this could happen. The Veteran felt "[w]hat it boiled down to is they didn't care." An August 2021 medical advisory opinion, based on review of the Veteran's medical history, determined that "VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case." The examiner opined that it is less likely than not that (1) the claimed condition was caused by or became worse as a result of VA treatment, (2) there was additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, (3) additional disability resulted from an event that could have not been reasonably foreseen by a reasonable healthcare provider and/or (4) failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner explained that the Veteran underwent a successful right hip arthroplasty in July 2013 due to severe degenerative joint disease; however, the right total hip arthroplasty required revision due to unacceptable subsidence in December 2013. The examiner further explained that "[s]ubsidence is a known risk with hip replacement and complications associated are discussed in informed consent." In support of this opinion, the examiner discussed findings from studies of the rate of subsidence ("defined as the inferior migration of the femoral stem following total hip arthroplasty) in THA procedures. Based upon the evidence of record, the Board finds that entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of right hip replacement is not warranted. As an initial matter, resolving any doubt in the matter in favor of the Veteran, the Board finds the Veteran had additional disability following the July and December 2013 right hip surgeries. While some subsequent treatment records attribute the Veteran's right hip and leg pain to factors unrelated to the VA surgical treatment, a combination of greater trochanteric bursitis (improved with bursitis injection) and right lumbar radiculopathy, VA and private treatment records also indicate that there was additional disability after the hip replacement and subsequent revision, including limitations due to chronic right hip pain and post-surgical acquired right leg length discrepancy. As to the issue of informed consent, although the Veteran has testified that he was not informed that he would have pain 3 months after surgery, he has not argued that he did not give informed consent to the surgeries and the medical evidence clearly shows that all appropriate consent was obtained prior to each surgery. The consent forms executed by the Veteran specifically note the risks of the procedures, including persistent pain, damage to bone (leg length discrepancy) and need for revision surgery/further operations. Thus, the Board concludes that VA furnished the care with the Veteran's consent. As to whether the chronic pain and leg length discrepancy were reasonably foreseeable complications of the 2013 right hip surgeries; the medical evidence demonstrates that such were reasonably foreseeable because the consent forms identified such problems as known risks and side effects. Thus, the crucial question is whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The Board concludes that there is no evidence of carelessness, negligence, lack of skill, or similar incidence of fault on the part of VA personnel who performed the July 2013 right hip replacement and December 2013 revision of right hip replacement. In reaching this conclusion, the Board relies upon the August 2021 medical advisory opinion. The Board also notes that the medical evidence shows no surgical complications in connection with either surgery and X-rays since the December 2013 revision show "a well-implanted total hip arthroplasty, without any evidence of radiographic loosening or failure, or any radiographic findings that would explain his hip pain." In addition, subsequent treatment records attribute the Veteran's right hip and leg pain to a combination of greater trochanteric bursitis (improved with bursitis injection) and right lumbar radiculopathy. As explained in the August 2021 medical advisory opinion, review of the record shows the medical professionals followed the appropriate standard of care in connection with both the July 2013 right hip replacement and the December 2013 revision of right hip replacement. The examiner determined that it is less likely than not there was additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner further explained that, as evidenced by the consent forms executed by the Veteran, the additional disability was reasonably foreseeable. There is no suggestion in any of the medical evidence that the additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. The Board has no independent basis to question the August 2021 VA examiner's findings absent competent and credible medical evidence to the contrary. The August 2021 medical advisory opinion stands unchallenged on the critical question of whether the Veteran has any additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance on fault on the part of VA, or an event not reasonably foreseeable. The Board is sympathetic to the Veteran's frustration with his chronic pain and leg length discrepancy. However, the preponderance of the probative evidence is against a finding that these residuals are due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault in furnishing care or treatment by VA medical professionals, that they were not reasonably foreseeable risks of the surgery, or that he was not fully informed as to the nature of the surgery, potential risks, and alternatives. The Board affords greater probative weight to the surgical and post-operative treatment records, consent forms executed by the Veteran, and the August 2021 medical advisory opinion than his lay assertions that the chronic pain and leg length discrepancy are due to carelessness on the part of the VA personnel or that he was not fully informed of the potential risks, including continued pain and joint symptoms. Although he is competent to describe the history and symptoms after the July 2013 right hip replacement and December 2013 revision of right hip replacement, his statements cannot sufficiently and persuasively serve to address questions of causation between VA care and the claimed right hip/leg disability pursuant to the provisions of 38 U.S.C. § 1151, because these are complex medical questions outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not presented any medical opinion or treatise evidence supporting his claim in this regard. As such, the criteria for entitlement to compensation under 38 U.S.C. § 1151 have not been met. The Board has carefully reviewed the record in depth, but has been unable to identify a basis upon which benefits under 38 U.S.C. § 1151 are warranted. The overwhelming weight of the evidence of record is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not for application in resolution of this appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for right hip surgery is denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.