Citation Nr: 21024295 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-37 804 DATE: April 22, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left leg shortening due to left hip hemi-arthroplasty is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1965 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in July 2020. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left leg shortening due to left hip hemi-arthroplasty is remanded. The Veteran and his representative assert that the Veteran developed a leg length discrepancy due to a December 15, 2006, VA medical procedure. See July 2020 transcript of Board hearing; January 2020 Informal Hearing Presentation (Informal) prepared by his accredited representative, The American Legion. The Veteran and his representative maintain that he was only told after the procedure that “leg length discrepancies happen a lot.” He added that he would not have consented to the surgery if he had been informed that there was a risk of developing a leg length discrepancy. In support, he testified that he had no leg length discrepancy during his long career working for the Florida Department of Corrections. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran’s willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the veteran’s condition after such care, treatment, or examination is completed. In this case, the Veteran seeks compensation under 38 U.S.C. § 1151 for left leg shortening due to left hip hemi-arthroplasty surgery conducted on December 15, 2006. During the July 2020 hearing, the Veteran testified that he had left hip replacement surgery to treat his left hip pain. He stated that prior to the surgery he had left hip pain and was never told he had a leg length discrepancy. After the surgery, the Veteran noticed that his left leg is shorter than his right leg. The Veteran asserts that he was not warned that a leg length discrepancy could be a potential risk and he may not have consented to the surgery if he had known about this risk. Medical treatment records show that the Veteran was diagnosed with severe degenerative arthritis of the left hip prior to the surgery but walked normally and had full range of motion. See Medical Treatment Record, February 2006. A September 2015 private treatment note recorded left hip pain and noted that the Veteran has left leg shortening leg length discrepancy after total hip arthroplasty. The Veteran has also seen a podiatrist to obtain a shoe lift. In addition, a December 15, 2006, Capri record (at page 880) states, “The full consent document can be accessed through VistA Imaging.” Unfortunately, this document is not available in VBMS for the Board to review. Given the Veteran’s testimony and the medical evidence of record, the Board finds remand necessary to obtain a VA examination and determine all left leg/hip diagnoses and their corresponding etiologies. The matters are REMANDED for the following action: 1. Obtain the signed informed consent, any surgical, nursing records, from the Veteran’s December 15, 2006, VA total left hip arthroplasty. 2. Schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of his left hip disability and left leg shortening. The examiner must respond to the following inquiries: (a) First, the examiner should provide an opinion as to whether the Veteran developed additional disability following his December 15, 2006 procedure. This must specifically include acknowledging and discuss the Veteran’s competent report that he had a leg length discrepancy and that his left leg is shorter as a consequence of the December 15, 2006, procedure. In forming an opinion, the examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology and the September 2015 private treatment note, and undertake any indicated studies. (b) Second, for each additional disability identified in (a), provide an opinion as to whether he developed that disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in its treatment of the Veteran in relation to the December 15, 2006, left hip procedure. (c) Third, for each additional disability identified in (a), provide an opinion as to whether the development of that disability was an event not reasonably foreseeable. That is, was developing the additional disability the type of risk that a reasonable health care provider would have disclosed? In responding to this question, the examiner must acknowledge and discuss the Veteran’s report that he was unaware that there was a risk of developing a leg length discrepancy as a consequence of the left hip total arthroplasty. (d) Fourth, is it at least as likely as not that the Veteran’s left hip disability was caused by his service-connected diabetes? (Continued on the next page)   (e) Fifth, is it at least as likely as not that the Veteran’s left hip disability was aggravated by his service-connected diabetes? STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.