Citation Nr: 21007862 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-36 435 DATE: February 10, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left hip disability, including secondary to the service-connected (pursuant to for a 38 U.S.C. § 1151) left peroneal palsy with foot drop, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1979 to June 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded this claim to obtain private treatment records and provide a VA examination and nexus opinions for compensation under 38 U.S.C. § 1151. A remand confers on the appellant the right to compliance with that order. Stegall v. West, 1 Vet. App. 268, 271 (1998). Private records and records of the Veteran's July 2007 VA surgery have been associated with the claims file. Unfortunately, another remand is required to obtain an adequate opinion. Here, the Board directed the examiner to render an opinion and rationale as to whether the Veteran had an additional left hip disability as a result of his July 2007 surgery at the Martinsburg VA Medical Center (VAMC), and if so, whether it was as likely as not that any additional disability was proximately caused by some instance of VA fault or failure to exercise a reasonable degree of care. The VA examiner was also directed to provide an opinion and rationale as to whether it was at least as likely as not that the Veteran's left hip disability, diagnosed as avascular necrosis, was aggravated by his service-connected left peroneal palsy with foot drop. The file contains three VA opinions – from August 2020, September 2020 and January 2021. The August 2020 VA examiner concluded that the Veteran's left hip condition was at least as likely as not worsened secondary to post-operative complications, but that the Veteran's additional disabilities were less likely than not caused by VA fault. However, this opinion is inadequate, as it was unclear which complications corresponded to which hip surgery -- the Veteran has undergone three hip surgeries, but only one was performed at a VA medical facility (the July 2007 surgery). The only rationale provided was that the additional disabilities suffered by the Veteran were potential complications of hip replacement surgery; but she did explain not how that applied specifically to the treatment the Veteran received. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The September 2020 negative nexus opinion was inadequate as well. This opinion was inadequate as well; the examination report included a summary of current medical literature, but the examiner failed to identify what additional disability she was analyzing and how the medical literature she summarized applied to the Veteran's specific case. The January 2021 contract examiner reviewed the file and noted the prior opinions, but declined to offer one herself, saying she needed additional information. She did not specify what that information was. It appears the RO has recognized the inadequacy of these opinions as well; it has continued to seek additional opinions even after the case was returned to the Board and placed on the docket. As detailed above, the Board concurs that addendum opinions and rationales are required. Accordingly, the Board finds that remand is required. To ensure that a clear timeline is considered, in July 2007, the Veteran underwent left hip replacement surgery at VAMC Martinsburg. It has been determined that additional disability, left foot peroneal nerve palsy with foot drop, resulted from this surgery. While no negligence or instance of fault on the part of VA was found, the condition was not reasonably foreseeable, and so entitlement to benefits under 38 U.S.C. § 1151 was established. In mid-2009, the Veteran complained of recurrent, progressive left hip pain. VA doctors suspected a possible infection, and performed blood work, a bone scan, a white blood cell scan, and x-rays. No infection was identified, but it does not appear any final determination for the increasing symptoms was identified. The Veteran continued to complain of hip symptomatology. In 2015, the Veteran sought treatment at the Hershey Medical Center, a private provider. Infection of the left hip was identified based on bloodwork; aspiration was then consistent with “ongoing underlying infection.” Revision surgery, which also involved fracture and repair of the left femur, was performed in October 2015. It is the Veteran’s contention that the severe infection which resulted in the need for the 2015 surgery is ultimately the result of VA’s failure to properly diagnose and treat him from an earlier date. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a clinician with expertise in orthopedics and orthopedic surgery to review the VA treatment of the Veteran's left hip disability. Referral to an outside consultant may be necessary. The qualifications of the examiner in orthopedics and orthopedic surgery much be specified. Provision of a new physical examination and any testing, studies or medical imaging is at the discretion of the reviewer. The electronic claims file must be made available to the examiner for review and the review must reflect that such review has been accomplished. Attention is specifically directed to the above short factual summary of the timeline. The reviewer must respond to the following: a. Clearly identify any additional disabilities that are at least as likely as not (50 percent probability or greater) caused or aggravated by the 2007 VA hip surgery, including the subsequent infection and necessary surgical revisions, to include discussion of left hip impairment, left femur fracture and leg length discrepancies. b. For each additional disability identified, the reviewer will opine as to whether that such is i. at least as likely as not (50 percent probability or greater) the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing treatment, or ii. reasonably unforeseeable. The reviewer must specifically address the theory that VA’s delay in diagnosing and treating infection of the left hip prosthesis caused or aggravated the eventual. The reviewer must address the testing performed between May and July 2009 regarding the possibility of an infectious process in the Veteran’s left hip, and continued complaints of left pain until October 2015, when he underwent revision surgery for his left hip prosthesis. The review will discuss the Hershey Medical Center records indicating that the VA did not perform an aspiration and culture of the Veteran’s left hip prosthesis, and whether such was necessary and advisable under the appropriate standard of care. In other words, was the infection that required the 2015 revision surgery at Hershey Medical Center related to/the same infection that was related to complaints in 2009, which was not identified and treated until 2015, should it have been diagnosed and treated earlier, and would earlier action have resulted in a different outcome? A complete rationale is requested for all opinions provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. The reviewer must also opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left peroneal palsy with foot drop aggravated his left hip disability, diagnosed as avascular necrosis, beyond its natural progression and whether it contributed to developing or impacted the detection or treatment of his left hip prosthesis infection. A complete rationale is requested for all opinions provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.