Citation Nr: 21032294 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-13 214 DATE: May 26, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right hip failure condition is denied. FINDING OF FACT 1. The right hip failure condition was not sustained in connection with VA hospital care, medical or surgical treatment, or examination. 2. The preponderance of the evidence is against finding that the right hip failure condition was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for right hip failure condition have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1971 to January 1973. In July 2016, the Veteran and his spouse testified at a videoconference hearing before the undersigned and a transcript of the hearing is of record. The Board remanded the issue in May 2019 and March 2020 to obtain relevant private treatment records and a VA medical opinion on the issue. Private treatment records have since been associated with the claims file and a VA medical opinion was obtained in April 2020. The Board therefore finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. Compensation under 38 U.S.C. § 1151 for right hip failure condition. The Veteran contends that VA failed to timely diagnose a right hip condition. He asserts that when he became a Bay Pines VA Healthcare patient in 2009, he complained of an inability to walk without pain on the right side. He was treated for lower back problems when it was actually the right hip, and VA "never did resolve the problem." See the June 2015 Claim for Damage, Injury, or Death. He testified in the July 2016 Board hearing that he was eventually was told that his hip socket had corroded over the head of the femur and mushroomed, and he had hip replacement surgery at Brandon Regional Hospital. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Section 1151 compensation is awarded for qualifying additional disability in the same manner as if such additional disability were service-connected. The purpose of the statute is to award benefits to those Veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). For purposes of establishing entitlement to section 1151 benefits, a disability is a qualifying additional disability if it: (1) was not the result of the Veteran's willful misconduct; and (2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(a)-(d). The present case, however, concerns a claim of a failure to treat or diagnose a disability. The 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." Roberson, 22 Vet. App. at 364-65. In other words, in order to prove a claim under 38 U.S.C.A. § 1151 for failure to diagnose 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. Roberson v. Shinseki, 607 F.3d 809, 817 (2010)(upholding GC's elements of a claim based on a failure to treat); VAOPGCPREC 05-01; see also 38 C.F.R. § 19.5 (2012) (stating that the Board is bound by precedent opinions of the VA's General Counsel). The Board acknowledges that these elements were delineated by VA's General Counsel as part of the version of 38 U.S.C.A. § 1151 effective for claims filed prior to October 1, 1997. However, despite the fact that the law in effect at such time did not contain a "fault" requirement as it now does, the courts have determined that it is impossible to delineate proximate cause without speaking in terms of duty when considering a claim based on failure to diagnose, even for claims filed prior to the change in law. Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010), aff'g 22 Vet. App. 358 (2009). As such, there has been no real change in the standard for these claims concerning a failure to diagnose and the elements delineated by VA's General Counsel remain relevant to claims filed after October 1, 1997, such as the present appeal. Here, medical treatment records clearly indicate that the Veteran has a current right hip diagnosis. Specifically, VA treatment records indicate findings of degenerative arthrosis at the right sacroiliac (SI) joint in 2009 and severe degenerative arthritis of right hip in July 2011. The Veteran had a right total hip arthroplasty in September 2013 at a private hospital. The Board finds, however, that the right hip condition was not sustained in connection with VA hospital care, medical or surgical treatment, or examination; nor was it caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. VA Palm Harbor clinic treatment records indicate that on June 24, 2009, the Veteran reported having an exacerbation of chronic low back pain. X-rays showed, in relevant part, probable mild degenerative arthrosis at the right SI joint. On July 10, 2009, the Veteran was seen for an initial history and physical at the VA Palm Harbor clinic to establish primary care. He was noted to have chronic back pain, but the treatment record is silent for mention of any right hip pain or problems. An MRI showed lumbar spine degenerative discopathy/facet joint arthropathies. On July 28, 2009, the Veteran reported in a VA Bay Pines appointment that he had pain in his "back, hips, and legs. I can't walk at times and I have terrific pain." He was seen by VA pain management the same day, in which he reported that he had right hip into anterior hip and groin pain, and numbness down his right leg and into the foot. He had tenderness posteriorly on the right hip with decreased sensation in the right leg. The treating physician assessed the Veteran has having right sacro-iliac arthropathy and advised the Veteran to have a right sacroiliac joint injection. The next day, the Veteran was seen at the Palm Harbor VA clinic to establish care with the treating primary care doctor. He requested a referral to the Tampa VA for chiropractic care, and admitted to being sedentary for the past several months due to chronic pain from his back and skin disease. The treatment record is silent for mention of any right hip pain or problems. In August 2009, the Veteran had a VA podiatry consult, in which he was noted to have "flat foot/gait disturbance/foot pain/obesity," and the treatment record is silent for mention of any right hip problems. The Veteran also had a VA physical therapy consult in August 2009, in which he reported having a long history of low back pain, which had recently flared up after falling off a truck, with occasional paresthesias into the right thigh. The treatment record is again silent for mention of any right hip musculoskeletal complaints. In September 2009, the Veteran had a VA neurology consult. He reported having back pain that radiated down his anterior and lateral thigh, not past his knee. He was assessed as having right sciatica L4-5 and started a series of appointments for acupuncture, which he started in October 2009 and continued for approximately a year. In a January 2010 VA acupuncture appointment, the Veteran reported having right side radiculopathy. In February 2010, the Veteran's VA problem list was noted to include hip osteoarthritis. In January 2011, the Veteran had a VA physical therapy consult for his low back pain. He reported that the pain was localized more on his right side with intermittent numbness and tingling into the bilateral lower extremities. In July 2011, the Veteran was seen for increasing knee pain. During the evaluation, he was noted to have a diminished range of motion and pain with internal and external rotation of the right hip. The treating physician indicated that the Veteran had degenerative arthritis of right greater than the left hip and ordered x-rays, which showed severe degenerative arthritis of the right hip joint. The Veteran was contacted the same day regarding the results of his x-rays. He was seen for an orthopedic surgery consult next month, and the treatment record notes that the Veteran was an "extremely high risk for joint replacement surgery, especially thr" (total hip replacement) because of his recurrent skin infections, morbid obesity, and dental issues. The Veteran needed to reduce his risks, especially infection, before consideration for joint replacement. In September 2011, the Veteran reported in a VA primary care appointment that he wanted his hip operated on; he had lost 10 pounds and was encouraged to continue with exercise and a healthy diet. In a November 2011 VA orthopedic surgery consult, the Veteran reported having severe pain in the right hip. The treating orthopedic surgeon noted that the Veteran's right hip was bone-on-bone, he had sclerosis on the acetabular side, and was beginning to lose some of the sphericity of the femoral head. The Veteran was advised to continue his weight loss program and return in two months to recheck his weight. If he could get his BMI down to less than 40 and lose 20-30 pounds, he could be scheduled for a total hip arthroplasty. In December 2011, the Veteran was advised to get injections for pain relief until he could have a total hip replacement. In March 2012, the Veteran reported that he was still bothered by right hip pain, which continued to restrict his activity. In April 2012, he was noted to have lost 40 pounds and weighed 300 pounds. In June 2012, the Veteran had a procedure to remove a cyst on his finger and had some dental appointments. In June 2012, the Veteran inquired about fee-based orthopedics. His VA primary care physician noted in the treatment record that updated x-rays and another orthopedic surgery consult were needed; if the hip repair could not be done through VA, she would consider fee-basis referral at that time. X-rays showed no significant change since the last study in July 2011. The Veteran had a right hip injection in July 2012 and was enrolled in the MOVE program. In an August 2012 telephone conversation, the Veteran indicated that the injection helped him for a little more than a week, but the pain has returned. He indicated that he wanted hip surgery, despite the VA doctor's reluctance to do so. He also noted that his current weight was around 312 pounds. The doctor noted that the goal was for the Veteran to be around 270 pounds to qualify for a hip replacement. In October 2012, the Veteran requested that his right hip be reevaluated for surgery. His spouse indicated that they were frustrated with his inability to lose weight and get hip surgery. She wondered whether a civilian orthopedist would have the same basic weight restrictions in regard to hip replacement surgery. The treating VA doctor noted that most surgeons would be reluctant to perform surgery at the Veteran's current weight and offered a consult with another VA doctor or a fee-basis consult if the Veteran wished to pursue that option. Approximately two weeks later, the Veteran called and left a message requesting that an orthopedic doctor to call him back. As such, a voicemail was left for the Veteran noting that he had gained 30 pounds in the last six weeks, which had occurred after he had been "lectured" about the necessity of getting his weight down to become a candidate for hip replacement. The complication rate for a morbidly obese patient was four times the rate for hip dislocation and seven times the normal rate for a surgical site infection. The Veteran enrolled in the MOVE program again at the end of October 2012. In December 2012, the Veteran was noted to have started an exercise program using a kayak with foot pedals. His weight was noted to be 345 pounds. Approximately five days later, in an occupational therapy consult, the Veteran indicated that he was going to have a hip replacement surgery in the new year, which he would have done outside the VA. In January 2013, the Veteran was noted to be 350 pounds and not a candidate for a total hip replacement at that time. A power scooter was ordered for him and he was admitted to a 19-day pain management rehabilitation program. He stated in a physical later that month that he had an appointment with a non-VA orthopedic surgeon. In May 2013, the Veteran stated that he would become Medicare-eligible in July, and he was planning on getting a second opinion of his right hip with a private orthopedist then. In June 2013, the Veteran was noted to have been to the MOVE program on "more than a few occasions" but had never been able to achieve goal weight. A July 1, 2013, private treatment record notes that the Veteran was seen for evaluation of the right hip. He was noted to weigh 365 pounds with a body mass index (BMI) of 45.62. His BMI exceeded the upper parameter, and he was provided a follow-up plan with resources to reduce his BMI. The Veteran was also referred to Dr. M.M. for a consult. On July 11, 2013, the Veteran saw Dr. M.M., who indicated that the Veteran's weight of 364 pounds made him a high risk for surgical complications if he had a total hip arthroplasty. In addition, he had a skin condition of recurrent outbreaks of lesions and infection. The recommendation was for conservative management, with the Veteran attempting aggressive weight loss for two months with a goal of reaching 325 pounds. On September 10, 2013, the Veteran had a right total hip arthroplasty at a private hospital due to end-stage osteoarthritis. In June 2015, Dr. J.M., Chief of Orthopedic Surgery at the James A. Haley VA, contacted the Veteran and his spouse on behalf of the Secretary of VA to address their concerns. Dr. J.M. informed the Veteran and his spouse that he had reviewed the Veteran's VA records and listened to their concerns, including that the VA had denied him care and had forced him to go outside the VA system at considerable out-of-pocket expense. Dr. J.M. "spoke at length about how [the Veteran's] obesity and pemphigus made him a high risk patient for total him replacement," and that "many, perhaps most" orthopedic surgeons would have turned him down for surgery knowing that patients like him were at least three times more likely to incur a short term or long term complication. It was therefore not unreasonable for his doctor to have declined to do surgery. Dr. J.M. opined that if the Veteran was fully informed of the risks of surgery, agreed to those risks, and pledged to continue weight loss as well as refrain from high impact activity, he should have been fee-based out to a non-VA provider. In April 2020, a VA medical opinion was obtained. A VA physician indicated that review of the record showed that the Veteran complained of radiating pain that he attributed to an in-service back injury, and on evaluation, arthritis of the right hip was diagnosed. The Veteran failed conservative management and a right total hip replacement was done. He was cautioned that he was a high risk for complications and failure due to morbid obesity. VA diagnosis and treatment were appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met. It was less likely as not that the right hip condition was caused by or be came worse as a result of the VA treatment; that additional disability resulted from careless ness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; that additional disability resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider; and/or VA failed ot timely diagnose or properly treat the claimed disability. The doctor indicated that the June 2015 report of contact from Dr. J.M. showed that the Veteran was appropriately advised and cautioned regarding his right hip condition, and that Dr. J.M.'s opinion was speculative. There was no evidence that the Veteran should have been referred to a non-VA provider any sooner than he was, as that was a decision that could only be made at the time of the examination. The Veteran was counseled on appropriate treatment measures, but he failed to follow weight loss advice and was referred for a high risk procedure. The Board finds that the April 2020 VA medical opinion is probative evidence regarding whether the Veteran's right hip failure condition was caused by hospital care, medical or surgical treatment, or examination; and whether the condition was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. The opinion was rendered after reviewing the Veteran's medical records from VA and non-VA facilities, and it provided the facts and rationale on which the opinion was based, including expressly discussing the June 2015 statement by Dr. J.M. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Board also finds that although Dr. J.M. is clearly competent to opine on orthopedic conditions, his opinion is not probative on the issue of whether the Veteran's right hip failure condition was caused by hospital care, medical or surgical treatment, or examination; or whether the condition was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. Specifically, Dr. J.M. opined that if the Veteran was fully informed of the risks of surgery, agreed to those risks, and pledged to continue weight loss as well as refrain from high impact activity, he should have been fee-based out to a non-VA provider. As the April 202 VA examiner noted, that was a speculative statement. Dr. J.M. did not appear to consider the Veteran's history of weight gain or repeated attempts to achieve a goal weight in the MOVE program without success. Furthermore, the Board finds it significant that VA treatment records indicate that the Veteran's doctor offered him a consult with another VA doctor or a fee-based consult in October 2012, and the Veteran chose not to pursue such options. In addition, although the Veteran can describe observable symptoms including pain and limited motion, his statements cannot be used to determine whether his diagnosed right hip condition was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). There is no evidence that the Veteran has the medical education and training required to make competent clinical medical diagnosis, or to attribute such a diagnosis to specific VA treatment. As such, the Board finds the Veteran's statements probative with regard to establishing the Veteran's symptoms, but does not find his statements probative with regard to establishing entitlement to compensation under 38 U.S.C. § 1151. In any case, their probative value is outweighed by the probative value assigned to an evaluation conducted by a person who has medical expertise and training. The Board understands the Veteran's frustration with not being offered a fee-based consult for right hip surgery prior to October 2012. However, as noted by the April 2020 VA examiner, referral to a non-VA provider is a decision that can only be made by the Veteran's doctors at the time of evaluation/treatment, and his frustration does not warrant entitlement to compensation under 38 U.S.C. § 1151, as there is no evidence that the lack of referral was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. (Continued on the next page) In sum, the Board concludes that the right hip failure condition was not sustained in connection with VA hospital care, medical or surgical treatment, or examination; nor was it caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during treatment at a VA facility. As such, the legal requirements for entitlement to compensation for right hip failure condition under the provisions of 38 U.S.C. § 1151 are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.