Citation Nr: 0007263 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 97-19 778 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of left knee surgery performed during a VA hospitalization in October and November 1976. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active service from May 31, 1957 to August 10, 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision by the RO that denied compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of left knee surgery. The case is before the Board for appellate consideration at this time. REMAND The veteran has asserted that his current left knee disability is a result of VA surgery and treatment during a VA hospitalization in October and November 1976. The Board notes that the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of left knee surgery was filed prior to October 1, 1997. Since that is the case, negligence is not for consideration in regard to this claim. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of VA hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death was service connected. The regulation implementing that statute, 38 C.F.R. § 3.358, provides, in pertinent part, that compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or intended to result from the examination or medical or surgical treatment administered. 38 C.F.R. § 3.358(c)(3). The Board also notes that 38 C.F.R. § 3.358, provides, in pertinent part, that in determining if additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition that the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization etc., was authorized. In determining whether additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincident therewith. 38 C.F.R. § 3.358 (b), (c)(1). The initial determination to be made in the adjudication of the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of left knee surgery is whether or not this claim is well grounded. After a review of the evidence currently in the claims file, the Board finds that it is unable to make a determination as to the well groundedness of the veteran's claim for 1151 benefits because considerable clinical evidence necessary for this determination is not currently in the claims folder. Accordingly further development of the record is necessary. Robinette v. Brown, 8 Vet. App. 69 (1995). Review of the record indicates that the veteran has a history of sustaining fractures of his left proximal tibia and fibula in 1964. No clinical records reflecting treatment for these 1964 injuries to the left leg are in the claims folder. Such evidence, if existent, should be obtained prior to further appellate consideration in this case. The Board also notes that the veteran sustained a "grinding type" injury to his left knee in September 1976. At that time he received treatment from a private physician identified as Doctor Woodhouse of Clifton Forge, Virginia, who diagnosed the veteran as having a "torn knee cartilage" and referred the veteran to the VA for further treatment. No clinical records documenting this private treatment are in the claims folder and such should also be obtained prior to further appellate consideration of this claim. The record further shows that the veteran was hospitalized at the VA medical facility in Salem, Virginia from October 26, 1976 to November 10, 1976 for the treatment of a left knee injury. On November 4, 1976, the veteran underwent a left knee arthrotomy and Slocum procedure for the correction of internal derangement of the left knee. Although copies of most of the treatment records from this period of hospitalization are in the claims folder, the discharge summary of this hospitalization and the operation report in regard to the surgery of November 4, 1976 are not currently of record. Copies of these documents must also be obtained and associated with the claims folder. The veteran was again hospitalized at the VA medical facility in Salem, Virginia from December 12, 1976 to December 17, 1976 in order to undergo a period of physical therapy on his left knee. The hospital discharge summary of this period of hospitalization is not currently in the claims folder. All clinical records of this hospitalization should therefore be obtained prior to further appellate review. The Board further notes that the veteran received a VA orthopedic examination in November 1997. At the conclusion of that examination and after a review of the clinical records then available, the examining physician opined, essentially, that the veteran had a good result from his November 1976 VA left knee surgery but the knee had deteriorated over the years, as usually occurs after such surgery. The doctor further said that the veteran had developed problems due to his left knee injury and the surgery, but it would not have been any different regardless of who performed the surgery or where it was performed. However, since the records of the VA hospitalization of October and November 1976 are currently incomplete, the physician who conducted the November 1997 VA examination must have arrived at the above medical opinion without a review of the discharge summary of the VA hospitalization of October and November 1976, without an opportunity to review the operation report of the left knee surgery of November 4, 1976, and without review of the other medical evidence noted to be missing from the claims folder. It is further noted that the record contains a July 1999 statement from a private physician, Clare D. Weidman, M.D., who reported that the veteran currently has a grossly unstable left knee. This physician further stated that the 1976 surgery to attempt to stabilize the knee was "unsuccessful". In the Board's opinion, clarification of this physician's opinion should also be obtained prior to further appellate consideration of the veteran's claim for 1151 benefits for his left knee disorder. In view of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should appropriately contact the veteran and ask him to provide the names and addresses of all health care providers, VA and non-VA, who treated him for his 1964 fractures of the proximal left tibia and fibula. He should also be ask to provide the full name and address of Doctor Woodhouse of Clifton Forge, Virginia, the private physician who treated him for his 1976 left knee injury prior to his hospitalization by the VA in October 1976. After obtaining all necessary authorizations, the health care providers who treated the veteran for his 1964 left leg injury should be contacted and asked to provide copies of all clinical records documenting their treatment. Doctor Woodhouse should also be contacted by the RO and asked to provide copies of all clinical records documenting his treatment of the veteran's left knee injury in September and October 1976. All records obtained should be associated with the claims folder. 2. The RO should obtain a copy of the discharge summary of the veteran's hospitalization at the VA medical facility in Salem, Virginia in October and November 1976 and a copy of operation report of the arthrotomy and Slocum procedure on the veteran's left knee performed at that facility on November 4, 1976. In addition, the RO should obtain the hospital summary reflecting the veteran's hospitalization at the VA medical facility in Salem, Virginia in December 1976. All records obtained should be associated with the claims folder. 3. The RO should contact Clare D. Weidman, M.D., of Jackson River Orthopedics at P.O. Box 194, Low Moor, Virginia 24457, and ask her to clarify the opinion contained in her statement of July 1999 to the effect that the VA left knee surgery in 1976 was unsuccessful. Doctor Weidman should be asked if she considered the 1976 VA left knee surgery to be unsuccessful because; (a) the 1976 VA left knee surgery did not achieve the desired results; (b) the 1976 VA left knee surgery caused an increase in severity of a preexisting left knee disability; or (c) the 1976 VA surgery resulted in disability that was not present prior to the surgery. 4. Then the RO should review the claims folder to ensure that all of the above development has been completed and take appropriate action to correct any deficiencies in that regard. The RO should then determine whether the veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of left knee surgery during a VA hospitalization in October and November 1976 is well grounded. If the claim for 1151 benefits is found to be well grounded, the RO should then submit the veteran's claims folder to the VA physician who conducted the November 1997 VA orthopedic examination, or to another VA orthopedist if that physician is no longer available. The physician should undertake a complete review of the entire claims folder with all associated medical records and a copy of this remand. The physician should then express his medical opinion with full rationale as to the following questions: (a) whether it is at least as likely as not that the left knee surgery of November 4, 1976 resulted in any additional disability to the veteran's left knee that was not intended to result from or was not certain to result from said left knee surgery; (b) whether it is at least as likely as not that the VA left knee surgery on November 4, 1976 resulted in an increase in severity of the veteran's preexisting left knee pathology. Upon receipt of this medical opinion, the RO should then adjudicate the veteran's claim for 1151 benefits for left knee disability on the merits. 5. If the veteran's claim is denied as not well grounded, or is found to be well grounded but then denied on the merits, the veteran and his representative should be provided a supplemental statement of the case and afforded a reasonable opportunity to respond. The case should then be returned to this Board for further appellate consideration, if otherwise appropriate. No action is required of the veteran until he is so informed by the RO. The purpose of this remand is to obtain additional clinical evidence and to comply with a precedent decision of the United States Court of Appeals for Veterans Claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).