Citation Nr: A21020028 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200413-81906 DATE: December 15, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 due to surgery for left hip resulting in abnormal gait is remanded. REASONS FOR REMAND Although the Board sincerely regrets the additional delay that will result from remanding the claims, it is necessary to ensure that there is a complete record upon which to decide it so that the Appellant is afforded every possible consideration. The Veteran contends that he aggravated his abnormal gait after undergoing surgery on his left hip. He contends that VA clinicians ignored obvious signs that indicated the presence of an infection and an abscess that ultimately necessitated the removal of his prosthetic hip. The Veteran maintains that the delay in care resulted in a worse condition than he would have had but for the abnormally long delay. See June 2021 Board hearing. The Veteran seeks compensation for his alleged injuries pursuant to 38 U.S.C. § 1151. Entitlement to compensation under 38 U.S.C. § 1151 due to surgery for left hip resulting in abnormal gait is remanded. Under VA laws and regulations, when a Veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or qualifying death of a Veteran in the same manner as if that additional disability or death were service connected. A qualifying disability is one which is not the result of a Veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a). The issue in this case is whether VA care proximately caused the continuance or natural progress of the Veteran's altered gait due to a failure to timely diagnose and properly treat the Veteran's surgical site infection after a total hip arthroplasty. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). As such, the proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). As noted above, a claimant may establish that the qualifying disability was directly caused in either of two ways: 1) by carelessness, etc., or 2) by an event not reasonably foreseeable. 38 U.S.C. § 1151(a). The Board notes that such disability or death need not be "directly" caused by the "actual" medical care provided by VA personnel; however, section 1151 does not extend to the "remote consequences" of VA medical treatment. See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the additional disability or death. 38 C.F.R. § 3.361(c). It must also be shown that VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, representative's informed consent. 38 C.F.R. § 3.361(d)(1). 3.361(d)(1). At issue in this case is whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Id. The appellant does not assert, nor does the evidence suggest, any allegations of a lack of consent. As noted above, the present case, however, essentially concerns a claim alleging VA's failure to treat or diagnose the Veteran's surgical site infection. The United States Court of Appeals for Veterans Claims (Court) has recognized the "difficulty in assessing the element of causation in cases involving an omission, such as a failure to diagnosis, versus those based on a commission, or an affirmative act, that leads to clearly identifiable injuries." Roberson v. Shinseki, 22 Vet. App. 358, 363 (2009). In a claim based on an alleged failure to diagnose, "a claimant cannot demonstrate an injury unless it is shown that VA should have diagnosed the condition in question. Upon successfully demonstrating an injury or aggravation, a claimant must then prove that the injury or aggravation-the failure to diagnose-resulted in additional disability or death." Id. Essentially, in order to prove a claim under 38 U.S.C. § 1151 for failure to diagnose or treat a condition, the evidence must show: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Id. A medical opinion was obtained in January 2020 in which the examiner stated, "Review of VA diagnosis and treatment was appropriate and timely, appropriate accepted protocols were followed, the standard of care was met in this case." See January 2020 VA medical opinion. What's missing is a more thorough rationale as to why the medical doctor's failure to detect the Veteran's abscess sooner was not a breach in the standard of care. The Veteran testified at the June 2021 Board hearing that he was in excruciating pain after his surgery, yet he was ignored by the medical staff. VA treatment records show the Veteran underwent a left complex primary Total Hip Arthroplasty with bone graft to acetabulum on November 9, 2017. The Veteran was discharged to a rehabilitation unit on November 16, 2017. On November 21, 2017 the Veteran complained of severe stiffness and swelling of the left leg and stated he did not sleep the previous night. On November 25, 2017, the Veteran again reported pain and yellow drainage from the surgical site. The previous day, the Veteran had a fever and elevated heart rate. After draining about 400 mL of pus, the Veteran underwent an excisional arthroplasty of the left hip and removal of a Stryker implant on November 30, 2017. Due to the complexity of the Veteran's condition before and after the November 9 surgery, the Board finds that a more detailed discussion is required to address the elements of a section 1151 claim. The matters are REMANDED for the following action: 1. Return the claims file to the January 2020 VA examiner, or another appropriate VA examiner, for an addendum opinion addressing whether the Veteran experienced any additional disability resulting from VA medical care. After reviewing the claims file, including the timeline of events and the Veteran's contentions regarding his symptoms, the provider should answer the following to the best of his/her ability: a) Is it at least as likely as not (50 percent probability or greater) that during the period of VA treatment, beginning November 2017, the VA failed to diagnose or treat any medical condition? b) If the VA failed to diagnose or treat any medical condition, is it at least as likely as not (50 percent probability or greater) that, given the progression of the Veteran's symptoms, a provider exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment? c) If the VA failed to diagnose or treat any medical condition, is it at least as likely as not (50 percent probability or greater) that the Veteran's altered gait, or other additional disability, would probably have been less serious or avoided if proper diagnosis and treatment had been rendered? In answering these questions, please specifically address the Veteran's contentions that VA failed to diagnose the Veteran's surgical site infection in a timely manner based on the information available. (As a summary, the Veteran contends that symptoms of pain in the hip and yellowish drainage from the surgical site were signs of an infection and abscess that was not timely treated and caused additional disability) A complete rationale should be provided for any opinion stated, including citation to specific evidence of record and/or medical authority as appropriate. If the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.