Citation Nr: 22049065 Decision Date: 08/29/22 Archive Date: 08/29/22 DOCKET NO. 20-06 282 DATE: August 29, 2022 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional left hip and left leg disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1943 to April 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied the Veteran's claim for compensation under the provisions of 38 U.S.C. § 1151 for additional left hip and left leg disabilities. In May 2022, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. The Veteran essentially contends that he has additional left hip and left leg disabilities as a result of VA surgical treatment. He specifically maintains that he was admitted to a VA facility for a left total hip replacement in February 2008, and that immediately after his rehabilitation for the surgery, he started having problems with his left hip and left leg. The Veteran reports that he could not get up and down on his own or pick anything up that was below the level of his left knee, after his surgery. He maintains that the surgery led to looseness of his left hip joint, as well as shortening of his left leg. He indicates that he has to wear a lift in his shoes due to the leg length discrepancy of his left leg, which also inhibits his ability to walk. The Veteran states that he has difficulty standing from a seated position by himself, getting out of bed, and with walking for any distance, as a result of the surgery. The Veteran further reports that a plate was removed from his left leg during left total hip replacement surgery in February 2008. As noted above, the Veteran served on active duty in the Army from October 1943 to April 1946. His WD AGO Form 53-55, Enlisted Record and Report of Separation, lists his occupational specialty as an operations clerk. The Veteran's service treatment records are essentially unavailable and were apparently destroyed in the 1973 fire at the National Personnel Records Center (NPRC). His available service treatment records do not show treatment for any left hip problems and/or left leg problems. The Board notes that there are multiple post-service VA treatment records that refer to the Veteran's 2008 left hip surgery, and subsequent VA treatment. For example, a February 2008 VA operation report notes that the Veteran underwent a left hip removal of hardware, with a left hip hybrid total hip arthroplasty. The postoperative diagnosis was left hip posttraumatic arthritis, with a varus and rotational deformity, and retained hardware. It was noted that the Veteran had complications of cardia insufficiency. A February 2008 VA discharge summary lists primary diagnoses of a left hip total arthroplasty revision and hypotension likely secondary to blood loss and adrenal insufficiency, with a secondary diagnosis of adrenal insufficiency likely secondary to steroid joint injections. A March 2008 VA discharge summary lists primary diagnoses of hypotension requiring pressors and intubation, likely due to adrenal insufficiency, and a left total arthroplasty. The examiner indicated that the Veteran underwent a left total arthroplasty. A December 2018 statement from a VA examiner reflects that the Veteran's claims file was reviewed. The examiner indicated that the Veteran's current (left) hip/leg condition was not a result of error from surgery, or postoperative care, rendered through the VA. The examiner stated that the degree of care that was rendered was, in fact, that which would be expected of a reasonable health care provider. The examiner reported that the Veteran had a previous fracture of the left hip, which had been surgically repaired, with a blade plate internal fixation. The examiner stated that because of the previous fracture, the Veteran's hip had developed arthritis, a varus deformity, a grossly enlarged femur, and a healing response that resulted in an abundant amount of extra heterotopic bone to develop. The examiner maintained that such factors increased the complexity of the total hip replacement surgery in February 2008. The examiner indicated that during the procedure, it was noted that the Veteran's blood vessels were tangled in the bone from his previous surgery. The examiner stated that despite the difficulties faced, the procedure was successful, and the Veteran received a stable total hip implant. The examiner reported that it is noted on a subsequent surgical follow-up visit in July 2014, that there was evidence of loosening and subsidence of the total hip prothesis. The examiner stated that the Veteran was found to be ambulatory, with a cane, and to be very functional, at that time. The examiner maintained that because of the difficulties posed by the anatomic distortions created by the prior hip fracture, further hip reconstructive surgery was not recommended. The examiner indicated that the loosening of the total hip prosthesis was foreseeable, and that the difficulties were well-documented. The examiner stated that the healthcare providers did not commit an error, and that they provided an improvement upon the original condition. The Board notes that the examiner indicated Veteran's current (left) hip/leg condition was not a result of error from surgery, or postoperative care, rendered through the VA. Additionally, the Board observes that the examiner specifically reported that it is noted on a subsequent surgical follow-up visit in July 2014, that there was evidence of loosening and subsidence of the total hip prothesis, and that the loosening of the total hip prothesis was foreseeable. The Board notes, however, that the examiner did not specifically address the Veteran's reports that he suffered shortening of his left leg as a result of the February 2008 left total hip replacement, which inhibited his ability to walk. Additionally, the Board observes that the Veteran has indicated that he had a number of additional symptoms as a result of the surgery such as difficulty standing from a seated position by himself, getting out of bed, and with walking for any distance, which were also not discussed by the examiner. The Board notes that the Veteran was not actually afforded a VA examination, as to his claim for compensation under the provisions of 38 U.S.C. § 1151 for additional left hip and left leg disabilities. Additionally, the Board observes that it appears that the examiner, pursuant to the December 2018 statement, did not address a significant portion of the Veteran's claimed symptomatology as a result of the February 2008 left total hip replacement surgery. In light of the above, the Board finds that the Veteran should be afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the record, as to his claim for compensation under the provisions of 38 U.S.C. § 1151 for additional left hip and left leg disabilities. Such an examinations must be accomplished on remand. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for left hip and left leg problems since June 2019. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the Veteran's claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional left hip and left leg disabilities. The examiner must diagnose all current left hip disabilities and left knee disabilities. The examiner must then opine as to the following: (a) Whether it is at least as likely as not that any additional left hip disabilities and left leg disabilities (to include shortening of the left leg), were caused by the Veteran's February 2008 left hip surgery, and subsequent VA treatment, etc. (b) If a relationship between the claimed additional left hip disabilities and left leg disabilities (to include shortening of the left leg), and the February 2008 left hip surgery, and subsequent VA treatment, etc., is shown, the examiner must opine as to whether it is as likely as not that any such disabilities and/or additional disability were the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or an event not reasonably foreseeable. The examiner must provide a detailed description of any residual disability and/or disabilities presently manifested as a result of the February 2008 VA left hip surgery, and subsequent VA treatment, etc. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, 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.