Citation Nr: 21015717 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-29 461 DATE: March 18, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a left leg disability claimed due to surgical and medical treatment associated with left total hip arthroplasty (THA) at the Huntington VA Medical Center (VAMC) in March and April 2008, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from June 1970 to July 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision. A December 2010 rating decision reconsidered the claim and continued the denial. In August 2014, a videoconference hearing was held before the undersigned; a transcript is in the record. In June 2015, November 2017, September 2019, and November 2020, the matter was remanded for development. The Veteran was admitted to the Huntington VAMC for a left THA on March 31, 2008 and was discharged on April 3, 2008. He has alleged in his 38 U.S.C. § 1151 claim that his post-operative care (specifically, the manner in which his left leg was bandaged following the procedure) resulted in additional disability. To substantiate such claim, there must be evidence of: the claimed disability (or, as here, additional disability); VA medical or surgical treatment; a nexus between the disability and the VA treatment; and that the proximate causation of the additional disability involved some element of fault on the part of VA, or was an event not reasonably foreseeable. While the Board sincerely regrets the further delay in resolution of this matter, it finds a remand for further evidentiary development unavoidable. In the September 2019 Board remand, the Board found a March 2011 private medical opinion, and April 2016 and April 2019 VA medical opinions each to be inadequate. The September 2019 Board remand ordered (essentially because the above VA opinions were separately, and the Board notes, also cumulatively, inadequate) an additional examination to secure a medical opinion regarding the nature and likely etiology of all left leg pathology. On August 2020 VA knee and lower leg examination, the Veteran attributed the onset of his left knee pain and arthritis to the bandaging of his left knee following his total hip replacement on March 13, 2008. His wife reported noting color changes in the left foot after surgery due to tight dressings, with blister formation over the kneecap, monthly visits from wound care, and a prolonged use of antibiotics, with 14 months of total treatment. The Veteran reported feelings of tightness in the knee with aching pain in the posterior knee, frequent falls and difficulty catching himself, and occasional swelling and redness of the left knee. Bilateral knee DJD was diagnosed, and on examination, a 5 cm x 3 cm irregular superficial left patella scar was noted. The provider opined that it was less likely than not that the Veteran’s left leg disability resulted from a left THA at a VA facility. The Board found the opinion to be inadequate for multiple reasons. The provider indicated that there was no documentation of extensive wound care or antibiotics following the Veteran’s surgery, and the home health nursing notes show only a “skin tear” over the anterior knee, which was treated with topical antibiotic ointment and dressings for a brief period of time. However, an April 2008 Home Health treatment record shows that the Veteran was directed to clean the left knee wound and apply antibiotic ointment and clean gauze daily as needed, and a May 2008 VA treatment record notes a prescription of Amoxicillin for infection. Additionally, an alternate etiology for the left knee skin tear (evidenced by a scar noted on examination) was not identified. The November 2020 Board remand ordered (essentially because the above VA opinions were both separately and cumulatively inadequate) development for an addendum opinion to address the remaining questions regarding the nature and likely etiology of all left leg pathology. In a December 2020 VA opinion, the provider opined that the left knee degenerative joint disease (DJD) and left knee scar were less likely than not caused by or aggravated by (increased in severity due to) the Veteran’s left THA and post-surgical care. She explained that although the Veteran had mild bilateral knee arthritis, there was no indication it was connected to a superficial skin injury from his total hip replacement in 2008 because there is no known connection between a superficial skin tear and the development of arthritis within the joint. The provider also noted that later imaging studies of both knees showed mild arthritis within the knee joints and no infection of any kind. She further opined that the likely cause of the left knee DJD was years of wear and tear from working (postservice). However, regarding the left knee scar, the provider indicated that she reviewed the record and noted that documentation from the Veteran’s hospital stay in 2008 and postoperative care did not substantiate the claims made by him and his wife. She noted that hospital documentation indicated standard treatment following surgery for dressing changes and care without any indication of negligence or unusual circumstances, she did not see any documentation of post-operative extensive wound care or antibiotics, and subsequent treatment notes from both primary care and orthopedic surgery did not include any treatments for the superficial skin injury in the postoperative period. The provider related that, while a notation of a skin tear was noted, there was no evidence in the records of poor care, significant complications from the skin tear, or an infection documented by Home Health. She explained that superficial skin injury is not uncommon following the removal of surgical drapes, dressings, and wraps, and it is not an indication of negligence. The provider also addressed “conflicting evidence” and indicated that Home Health notes from 2008 indicated wound care to a skin tear of the left knee with antibiotic ointment and dressing change, nursing notes referenced a 2x2 cm left knee wound, and a May 2008 VA treatment record notes an amoxicillin prescription for an infection, but did not reconcile this evidence with the above (facially apparently conflicting) finding that she did not see any documentation of extensive post-operative wound care or antibiotic treatment of a skin infection. The Board finds the explanation of rationale for the opinion to be inadequate because of the failure to reconcile this apparent inconsistency. As is noted above, (and was addressed in part by the provider) an April 2008 Home Health treatment record shows that the Veteran was directed to clean the left knee wound and apply antibiotic ointment and clean gauze daily as needed, and a May 2008 VA treatment record notes a prescription of Amoxicillin for infection. Additionally, an alternate etiology for the left knee skin tear (evidenced by a scar noted on August 2020 examination) was not identified. The Board notes that on December 2020 VA examination, a left knee scar was not documented. However, on remand, it should be noted by the consulting provider that multiple knee examinations and treatment records during the period on appeal document a left knee scar of various size. If the opinion is that a left knee scar is less likely than not related to surgical and medical treatment associated with left THA, a more likely etiology for the left knee scar should be provided. Such direction is necessary because too often in the above opinions the examiner/provider has opined that a left knee scar was not related to the left THA then proceeded to discuss various issues with treatment before and after the left THA and did not identify an alternate etiology for the scar, seemingly overlooking that the Veteran has a left knee scar. Therefore, another remand for a fully adequate medical advisory opinion is necessary. The matter is REMANDED for the following: Arrange for the Veteran’s claims file to be returned to the August 2020 VA examiner (and not the December 2020 opinion-provider) for review and an addendum opinion that addresses the unanswered medical questions remaining (discussed above). [If that provider is unavailable (or the clarification sought cannot be provided without further examination), arrange for another orthopedic examination of the Veteran to determine the nature and likely etiology of his claimed left leg disability/ies, to include a left knee scar.] On re-review of the record (and examination of the Veteran, if such is found necessary), the consulting provider should respond to the following: (a) Regarding each separate left leg disability found (to specifically include a left knee scar), opine whether it is at least as likely as not (a 50 % or greater probability) that it was caused or aggravated by (increased in severity due to) the Veteran’s left THA and post-surgical care. (The allegation of improper postoperative bandaging must be specifically addressed, especially as it relates to the left knee scar, and the report should acknowledge the May 2008 VA treatment record notation of an Amoxicillin prescription for infection). If any left leg disability/pathology (such as a left knee scar which has been identified multiple times on examination) is determined to be unrelated to the Veteran’s left hip VA surgical and medical treatment, identify the etiology that is considered to be more likely, and explain why that is so. (b) If and only if, any left lower extremity pathology (to include a left knee scar) is determined to be related to VA surgical (or post-surgical medical) treatment, opine whether the treatment involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical care in question. The opinion should specifically address the Veteran’s allegations regarding the manner in which his leg was bandaged following surgery. (c) If the response to (b) is no (there was no VA fault in the care provided) opine further whether the additional left leg disability resulting from VA treatment is due to an event not reasonably foreseeable. All opinions must include a complete explanation of rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.