Citation Nr: 21009806 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-49 428 DATE: February 23, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from a July 1993 left total hip replacement (THR) is denied. FINDING OF FACT The Veteran’s residuals of a July 1993 left THR are not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment, or lack of informed consent, and they were not the result of a reasonably unforeseeable event. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for residuals of a July 1993 left THR are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1951 to November 1953. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim for further development in July 2018, June 2019, and May 2020. Notably, in July 2018, the Board initially found that new and material evidence was received since the final November 2006 Board decision on the matter and reopened the previously-denied claim. Under the facts of this case, compensation under 38 U.S.C. § 1151 is warranted where a veteran suffers additional disability or death resulting from hospital care, medical or surgical treatment, or examination provided by a VA employee or in a VA facility, and the proximate cause of the disability or death was “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” on the VA’s part in providing the hospital care, medical or surgical treatment, or examination, or where the VA failed to obtain informed consent, or where the proximate cause of the additional disability was “an event not reasonably foreseeable.” 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care proximately caused the Veteran’s additional disability, it must be shown that (1) “the VA failed to exercise the degree of care that would be expected of a reasonable health care provider,” or (2) the VA failed to obtain the Veteran’s informed consent, or (3) the additional disability was caused by an event not reasonably foreseeable that was the type of risk a reasonable health care provider would not have disclosed. 38 C.F.R. §§ 3.361(d)(1)(i)-(ii), (2). When determining whether the VA obtained informed consent, the Board will “consider whether the health care provider substantially complied with the requirements of” the regulation governing informed consent, 38 C.F.R. § 17.32. Id. In order for a disability to qualify for compensation under 38 U.S.C. § 1151, the disability must not have been the result of the veteran’s willful misconduct. In sum, there are essentially three elements of an 1151 claim; namely, (1) additional disability resulting from medical care provided by a VA employee or VA facility (2) that was proximately caused by (3) the VA’s carelessness, negligence, lack of skill, error in judgment, or similar fault, or by something not reasonably foreseeable, or where the VA failed to obtain informed consent. Id. All three elements must be satisfied to prevail under 38 U.S.C. § 1151. In determining whether a veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. 38 C.F.R. § 3.361(c)(1). Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish causation. Id. Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which care or treatment 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). The Veteran asserts that a VA doctor miscalculated the placement of his left hip prosthesis in a July 1993 THR procedure, which resulted in his left leg being longer than his right leg. The Veteran asserts that the resulting leg-length discrepancy and the deterioration of the left hip prosthesis led to several other additional disabilities. See November 2020 Brief; March 2020 VA Form 9; May 2019 Brief; April 2003 Board Hearing transcript. VA treatment records show that on July 8, 1993, the Veteran underwent a left THR operation. The operative report indicates that the Veteran had “a long history of worsening left hip pain” that was determined to be caused by severe degenerative joint disease of the left hip that adversely impacted his daily activity. As a result, he was scheduled for a left THR. The operative report indicates that informed consent was obtained before beginning the procedure. After the procedure, the Veteran was taken to the Intensive Care Unit in stable condition. With respect to the first element of an 1151 claim, additional disability, the Veteran has asserted that he incurred several additional disabilities from the July 1993 left THR, to include a leg length discrepancy, bilateral lower extremity neuropathy, right knee disability, right hip disability, back disability, blood poisoning, kidney cysts, hearing loss, vertigo, muscle loss, headaches, and heart attack. The Veteran’s treatment records reflect that he has been diagnosed with all these conditions. See September 2020 imaging study; September 2020 VA examination; March 2020 VA orthopedic progress note; November 2018 VA examination; April 2016 VA orthopedic note; May 2014 VA orthopedic consultation; February 2014 VA orthopedic consultation; July 2004 cardiac procedure note; April 2004 VA examination; March 2000 and 2001 VA neuropathy consultation notes; March 2001 VA primary care treatment note. Furthermore, with respect to leg-length discrepancy, an August 1993 VA treatment note indicates that the Veteran’s left leg was 2 cm longer than the right leg. The note also indicates that the Veteran complained of low back pain that was probably caused by the leg length discrepancy. September and October 1993 VA treatment notes also indicate that the Veteran’s legs were different lengths after the THR operation. An April 2016 VA orthopedic note indicates the Veteran’s left leg was 2 cm longer than the right leg. A November 2018 examiner noted that the left leg was 1 cm longer than the right leg. A March 2020 VA orthopedic note indicates the leg-length discrepancy was within 1-2 mm. Thus, the Board concedes that the Veteran has additional disabilities, and the first element is established. With respect to the second element of the claim, proximate causation, there are medical opinions of record for and against a finding of causation. However, the Board finds it is unnecessary to weigh these opinions because, as discussed below, the third element required to establish the claim, negligence or informed consent, is lacking. Thus, even if the Board were to find an opinion in favor of causation probative and adopt its positive opinion, the claim could still not be established because the requirement to meet the third element by showing carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or lack of informed consent would remain unsatisfied. Nevertheless, the Board notes that several medical providers have linked some of the Veteran’s additional disabilities, in particular the right knee and right hip disabilities, to the leg-length discrepancy that was caused by the July 1993 THR. Specifically, in a September 2020 VA examination, the examiner opined that the Veteran’s July 1993 left THR resulted in a leg-length discrepancy that caused his right knee disability, right hip disability, and his back disability. A November 2018 VA examiner noted that the Veteran’s right knee arthritis “was aggravated by the leg length discrepancy over a long period of time.” In a May 2014 VA orthopedic consultation note, Dr. R.B. opines that “[i]t is medically probably that his right knee pain and his right knee arthritis was accelerated and aggravated by the left hip problem and therefore could be considered, and should be considered, connected.” This opinion was also echoed by Dr. W.L. in a March 2020 VA orthopedic note. In a February 2014 VA orthopedic consultation note, Dr. R.B. opines that “there is certainly reason to believe that his right knee arthritis is an aggravation and has maybe been accelerated because of his leg-length discrepancy. His leg-length discrepancy occurred in 1993 and there is reason to believe that there was deterioration over the ensuing 10-11 years when his right knee was replaced.” In an October 2013 note, Dr. E.L. wrote that in her medical opinion the Veteran’s right hip and knee pain was related to his 1993 left hip replacement and that due to the leg-length discrepancy, the Veteran developed knee pain that required a total knee replacement. The Veteran cites these favorable causation opinions in numerous correspondences. The Board acknowledges that these providers credibly opined that the Veteran’s right hip, right knee, and back disabilities are the result of increased stress and pressure associated with gait disturbances caused by the 1993 lengthening of the Veteran’s left leg; however, the competent medical evidence indicates that the Veteran’s bilateral lower extremity neuropathy, blood poisoning, kidney cysts, hearing loss, vertigo, muscle loss, headaches, and heart attack are not caused by the Veteran’s surgery. See September 2020 VA examination report (noting the Veteran had three joint replacements, with each contributing to his subsequent elevated chromium and cobalt levels in his blood, but that such levels were below the current toxicity threshold and were thus not “toxic” and did not result in any pathology, to include kidney cysts, hearing loss, vertigo, muscle loss, headaches, and heart attack). In this regard, the Board further notes that it recognizes the foregoing opinions to be favorable with respect to the element of causation for leg length discrepancy, right hip, right knee, and back disabilities. However, as explained above, even if the element of causation is established, 38 U.S.C. § 1151 still requires evidence of fault, an unforeseeable event, or lack of informed consent. And, unfortunately, the record does not contain evidence that establishes that element. The crux of this case involves the final element of an 1151 claim, which requires a showing of carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or lack of informed consent. There are five medical opinions of record that all agree that leg-length discrepancy following a total hip replacement surgery is a normal, expected outcome of the procedure. The September 2020 VA examiner, who considered the medical articles submitted by the Veteran as well as his lay statements, noted that leg-length discrepancy is a “well recognized occurrence” in total hip replacement operations. The examiner stated that various studies place the incidence of leg-length discrepancies following total hip replacements around 20-50 percent, and some even higher. Because of this high occurrence of leg-length discrepancies in total hip operations, the examiner explained that “a reasonable health care provider would disclose this to patients” before the operation. The examiner also noted that most leg-length discrepancies caused no negative symptoms, and the medical provider would disclose this before the operation. As a result, the examiner opined that a leg-length discrepancy was “a reasonably foreseeable outcome” of the Veteran’s July 1993 hip operation and “it is the type of risk that a reasonable health care provider would have disclosed.” The September 2020 examiner also opined that his review of the file revealed “no indication of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA” in performing the Veteran’s 1993 hip replacement. The examiner noted that the operation report mentions no unexpected complications or difficulties with the surgery, and post[-]operative x-rays confirm appropriate positioning of the implants,” and “the Veteran’s hospital course was uncomplicated and his postoperative care was appropriate.” The examiner also explained that when performing total hip replacements “at times a longer leg length is necessary to obtain hip joint stability.” The examiner also stated that a leg-length discrepancy of 1-inch “is not indicative of poor surgical technique.” Continuing, the examiner observed that the Veteran’s “left hip replacement has remained stable for 27 years,” around 7-12 years longer than the average life expectancy of a hip replacement; thus, indicating that the procedure was properly performed. The November 2019 VA examiner noted that a bone length diagnostic study revealed a left leg measurement of 831.4 mm and a right leg measurement of 830.7 mm, and that this discrepancy was not significant. The examiner further noted that based on medical literature, the occurrence of leg-length discrepancy after a THR varies widely, from 1 to 27 percent, and there is no consensus regarding what discrepancy constitutes a “significant inequality.” The examiner further stated that “every attempt is made to equalize leg lengths and/or restore normal leg length,” but that “[s]ome amount of lengthening may be necessary to restore the native capsule tension due to the reduction in head size from the native head diameter to the prosthetic head diameter.” The examiner further added that the Veteran’s additional disabilities were a reasonably foreseeable outcome of a THR operation and that the residuals are the type of risk a reasonable health care provider would have disclosed. In a September 2019 examination, an examiner noted that “leg length is at times compromised when performing” total hip replacements in order to ensure stability of the joint. The November 2018 VA examiner explained that “leg-length discrepancy is a usual/expected outcome” of a surgical replacement of “a weight bearing joint,” such as a THR. The examiner further highlighted that “[t]here is no indication for failure to follow the appropriate standard of care noted in the records.” He further stated that the leg-length discrepancy “does not represent carelessness, neglect, lack of proper skills, etc.” and that it is a “usual/common” occurrence after replacement of a weight-bearing joint. The examiner also noted that leg-length discrepancy “resulting in a compensatory walk over [the] years will expose the lower extremities joints (contralateral hip, [bilateral] knees and lumbar spine) to undue stress.” An April 2004 VA examiner noted that the Veteran’s left leg was 1-inch longer than the right leg. The examiner further stated that a leg-length discrepancy of 1-inch after a total hip replacement happens “occasionally” and “is not evidence of poor surgical technique or malpractice.” See also September 2020 VA examiner. The examiner further explained that increasing the length of a leg in total hip operations “gives the total hip improved stability” and that the Veteran’s hip stability is demonstrated “by his lack of pain in the left hip and the absence of any incidents of dislocation or subluxation. The 1-inch increased length of the left leg after the surgery had been performed has contributed to the good stability of [the Veteran’s] left hip.” The examiner opined that the 1993 left THR was “performed properly and that there was no error of judgment or surgical skill nor any negligence regarding the left hip surgery” and there “was no carelessness regarding the left hip surgery.” The Board specifically notes that three examiners explained that leg-length discrepancy was a normal, reasonably foreseeable, and expected outcome of a total hip operation, such as the one performed on the Veteran. See September 2020 VA examination; November 2019 VA examination; November 2018 VA examination. Moreover, four examiners noted that sometimes lengthening of the leg in a THR procedure is required in order to ensure joint stability. See September 2020 VA examination; November 2019 VA examination; September 2019 examination; April 2004 VA examination. Significantly, three examiners stated that the lengthening of the Veteran’s left leg did not indicate “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault.” See September 2020 VA examination; November 2018 VA examination; April 2004 VA examination. Moreover, the Board observes that the post-operation discharge summary indicates that the Veteran’s left THR was performed without complications and that his hospital course was unremarkable. The summary further indicates he was discharged in good condition. A July 1993 VA x-ray of the left hip, conducted five days after the operation, indicates “[s]atisfactory position of the prosthesis.” An August 1993 VA imaging study of the Veteran’s left hip indicates that his “left total hip prosthesis is in place and appears well-situated.” An April 2004 VA examination notes that x-rays of the left hip showed “a well installed total hip prosthesis.” The Board finds the preceding examinations and associated opinions competent, credible, and probative. Moreover, the Board finds their opinions to be uncontradicted by any evidence of record. Specifically, the Board observes that the medical providers who provided positive causation opinions limited their opinions to causation and did not identify any evidence of negligence, carelessness, or similar fault on the VA’s part in performing the THR procedure. The Board further finds the evidence shows that the Veteran’s THR was performed without complications and that the left hip prosthesis was properly placed. With respect to informed consent, the Board observes that the operative report indicates that informed consent was obtained before the procedure, but the records do not indicate which risks were disclosed to the Veteran. The Veteran does not make any assertions with respect to whether the pre-operation informed consent process was adequate. Even if the informed consent process failed to abide by 38 C.F.R. § 17.32(c), which sets forth general requirements for informed consent, “[m]inor deviations from the requirements of § 17.32... that are immaterial under the circumstances of a case will not defeat a finding of informed consent.” 38 C.F.R. § 3.361(d)(1)(ii). The failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. McNair v. Shinseki, 25 Vet. App. 98, 107 (2011). Here, the Board finds that the pre-operation report shows that informed consent was obtained and the Board notes that the Veteran has not asserted otherwise. Furthermore, medical evidence indicates that leg-length discrepancy is an expected outcome of a THR operation and is one of the common side-effects disclosed to patients during the informed consent process. See November 2019 VA examination; September 2019 VA examination; November 2018 VA examination. The Board also finds that even if the VA failed to advise the Veteran of the foreseeable risk of a leg-length discrepancy in accordance with the regulatory requirements, it was a minor and immaterial deviation because a reasonable person under similar circumstances would have proceeded with the operation even if informed about the possibility of having a post-operation leg-length discrepancy. The Board notes that the operation report indicates that the Veteran had severe arthritis and degenerative changes of the left hip that affected his daily activities. The September 2020 VA examiner noted that although leg-length discrepancy was a common result of THR procedures, most patients with a post-operation leg-length discrepancy did not experience any negative side effects as a result. This examiner further explained that if leg-length discrepancy occurred, it was treatable with shoe modification, which the Veteran received. Thus, the Board finds a reasonable patient with a severely disabled hip who experienced limited functioning would have chosen to proceed with the operation after being advised that it was common for one leg to be longer than the other after the operation, but that most patients did not experience any negative effects of that length differential and that it was easily treated with shoe modification. In sum, the evidence of record establishes that the Veteran underwent a THR in July 1993 and suffered a leg-length discrepancy and other additional disabilities as a result of that operation. The evidence of record further contains several medical opinions that the Veteran’s post-THR leg-length discrepancy caused some of his additional disabilities, to include right knee, right hip, and back disabilities. Although those medical opinions provided favorable evidence with respect to causation, they did not identify any “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” on the VA’s part in providing care. Furthermore, several other examiners opined that leg-length discrepancy is a common, expected, and reasonably foreseeable outcome of a THR procedure, and that in some cases lengthening one leg is even required to ensure joint stability. These examiners further observed there was no evidence of record of any “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” on the VA’s part in providing care. To the extent the Veteran has submitted medical treatise evidence in support of his claim, it is not specific to the Veteran and the Board affords more probative value to the reasoning of the VA examiners outlined above. Moreover, the Veteran, who has no medical expertise, is not competent to opine on negligence in surgical procedures, so his statements in this regard are of no probative value. Lastly, even if the VA failed to obtain and document informed consent in accordance with regulatory requirements, a reasonable patient in the Veteran’s circumstances would have elected to undergo the procedure even if the patient was advised of the risk. Thus, for the foregoing reasons, the benefit sought on appeal is denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.