Citation Nr: 0811820 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 05-32 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of ventral hernia repair performed at a VA medical facility in March 1992. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The veteran and R.S. ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Navy from January 1974 to April 1976. This case comes before the Board of Veterans Appeals (the Board) on appeal from a January 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which denied the veteran's claim of entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of hernia repair. The veteran filed a notice of disagreement in regards to the January 2004 rating decision. She requested review by a decision review officer (DRO). The veteran presented personal testimony before a DRO at a hearing at the Portland RO in April 2005. After conducting a de novo review of the claim, the DRO confirmed the RO's findings in an August 2005 statement of the case (SOC). The appeal was perfected with the submission of the veteran's substantive appeal (VA Form 9) in September 2005. The veteran presented personal testimony before the undersigned Veterans Law Judge at a Travel Board hearing which was conducted at the Portland RO in September 2006. The transcript of the hearing is associated with the veteran's claims folder. In August 2007, the Board requested that an independent medical expert (IME) provide a medical opinion on an unresolved and complex medical matter in the case. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901 (2006). In November 2007, the Board received the requested IME opinion. On March 7, 2008, the Board received the veteran's request for a 60 day extension in order to submit additional evidence in support of her appeal. However, the veteran subsequently indicated on March 18, 2008 that she had no additional evidence to submit. Accordingly, the Board will proceed to a decision on her appeal. FINDING OF FACT A preponderance of the medical evidence of record supports a conclusion that the veteran's residuals of ventral hernia repair were not caused by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in furnishing surgical treatment to the veteran, nor was such the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for the entitlement to compensation for residuals of ventral hernia repair under the provisions of 38 U.S.C. § 1151 have not been met. 38 U.S.C.A. § 1151 (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks entitlement to compensation for residuals of ventral hernia repair under the provisions of 38 U.S.C. § 1151. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the veteran was informed of the relevant law and regulations pertaining to her § 1151 claim in a letter from the RO dated June 19, 2003, including the necessity of evidence of additional disability "suffered as a result of training, hospitalization, medical, surgical treatment or examination" and which was caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" on the part of VA. A subsequent letter from the RO dated November 21, 2003 asked for "medical evidence showing you have a current disability, and that it was made worse or caused by VA hospital, medical or surgical treatment." Crucially, the veteran was informed of VA's duty to assist her in the development of her claim and advised of the provisions relating to the VCAA in the above-referenced letters. Specifically, the veteran was advised in the June 2003 and November 2003 VCAA letters that VA would assist her with obtaining relevant records from any Federal agency, including records from the military, VA Medical Centers and the Social Security Administration. The June 2003 letter specifically informed the veteran that outpatient treatment records from the Portland VAMC had been requested on her behalf, and she was also advised in the November 2003 letter that a VA medical examination would be scheduled if necessary to make a decision on her claim. With respect to private treatment records, the November 2003 letter informed the veteran that VA would make reasonable efforts to obtain relevant records not held by any Federal agency, including records from state or local governments, private medical care providers, and current or former employers. Included with both letters were copies of VA Form 21-4142, Authorization and Consent to Release Information, and the veteran was asked in the letters to complete this release so that VA could obtain private records on her behalf. The June 2003 and November 2003 letters further emphasized: "You must give us enough information about your records so that we can request them from the person or agency that has them. If the holder of the records declines to give them to us or asks for a fee to provide them, we'll notify you of the problem. It's your responsibility to make sure we receive all requested records that aren't in the possession of a Federal department or agency" [Emphasis as in the original letters]. Finally, there has been a significant recent Court decision concerning the VCAA. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, elements (1) and (2) are undisputed, and element (3) is irrelevant. Moreover, elements (4) and (5), degree of disability and effective date, are rendered moot via the RO's denial of benefits pursuant to 38 U.S.C. § 1151. In other words, any lack advisement as to those two elements is meaningless, because a disability rating and effective date were not assigned. Because as discussed below the Board is denying the veteran's claim, elements (4) and (5) remain moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the appellant]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). In the instant case, the Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate her claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, reports of VA treatment of the veteran have been associated with the claims folder. Additionally, the Board obtained an IME opinion as detailed in the Introduction and as discussed below. Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been afforded the opportunity to present evidence and argument in support of her claim. As noted in the Introduction, she testified before the undersigned at the Portland RO in September 2006. Accordingly, the Board will proceed to a decision. Relevant law and regulations 38 U.S.C. § 1151 In pertinent part, 38 U.S.C. § 1151 reads as follows: "(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service- connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and-- (1) the disability or death 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 or death 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." Additional disability In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. See 38 C.F.R. § 3.361(b) (2007). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1) (2007). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2) (2007). Carelessness, negligence, etc. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1) (2007). Foreseeability Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2) (2007). Factual background The veteran is seeking compensation under the provisions of 38 U.S.C. § 1151 for residuals of a ventral hernia repair performed at a VA medical facility in March 1992. The Board believes that a brief factual background is appropriate. In March 1992, the veteran underwent a ventral hernia repair at the Portland VAMC. Treatment records reveal that, shortly after this surgery, the veteran was seen on multiple occasions for complaints of pain in the incision site and in the lower left quadrant. In January 1995, the veteran agreed to exploratory surgery to determine the source of her abdominal pain. Her surgical incision was reopened and subcutaneous tissue and fascial sutures were removed. A second ventral hernia repair was performed in June 1998 using Prolene mesh. By October 1998, the surgical wound had become infected and the veteran required intravenous drug therapy. In March 2000, the surgical wound was debrided, and in September 2000 a portion of the mesh used in the surgeries was removed, requiring another course of antibiotics in October 2000. In April 2001, the veteran underwent a complete repair of multiple abdominal wall defects resulting from the mesh. She received intravenous hydration and oral antibiotics in April 2001, and in July 2002 she required surgical drainage of an abdominal abscess. In December 2002, a piece of infected mesh was surgically removed. The veteran filed her claim for benefits pursuant to 38 U.S.C. § 1151 in February 2003. Analysis As was discussed in the law and regulations section above, in order to substantiate a claim under 38 U.S.C. § 1151, the evidence must show that VA treatment caused additional disability, and that such was the result of either negligence or carelessness on the part of VA or an event not reasonably foreseeable. The question of whether the veteran has additional disability and whether such is related to her March 1992 surgery is essentially medical in nature, as are the matters of negligence, etc. and foreseeability . The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board obtained an IME opinion addressing these questions in November 2007. No other competent medical opinion regarding the existence, etiology, and foreseeability of the veteran's disability resulting from the March 1992 surgery is of record. The veteran's own comments are entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The IME concluded that the veteran incurred additional disability as the result of the March 1992 surgery. The IME noted that surgical complications after laparotomies such as was performed on the veteran in March 1992 are quite common, including incisional or ventral hernias such as the veteran experienced, and that "the complications from that surgery are indeed the cause of all her subsequent problems related to her abdominal complaints." The IME's statement appears to be consistent with the contemporaneous treatment records, which document regular complaints of abdominal pain and discomfort subsequent to the March 1992 surgery, eventually resulting in additional surgeries as detailed above. The veteran's hearing presentation, as well as the many volumes of medical records, makes it clear that she has significant residuals of these surgeries. The Board thus concludes that there was additional disability as a result of the March 1992 surgery. The Board must now determine whether such additional disability is due to carelessness, negligence, etc. on the part of VA; or whether such additional disability is the result of an event which was not reasonably foreseeable. The thrust of the veteran's argument in this case centers on the issue of negligence. See, e.g., the veteran's September 20, 2005 substantive appeal. Although the IME determined that the veteran's incisional and ventral hernias and other abdominal problems were the result of her March 1992 surgery, he unequivocally concluded that such eventuality was not the result of fault on the part of VA. After a review of the medical records, the IME concluded "I see no evidence that the care in March 1992 was substandard in any way. I do not see that there was any negligence involved." Overall, the IME concluded that the veteran's additional abdominal disability was not due to "carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA medical professionals." There is no competent medical evidence to the contrary. The only evidence in the claims file serving to link the veteran's claimed additional disability to negligence on the part of VA emanates from statements made by the veteran herself and other laypersons such as R.S., who provided testimony at her September 2006 Travel Board hearing. See, e.g., the September 2006 hearing transcript, pages 30-31. It is now well settled, however, that laypersons without medical training, such as the veteran and R.S., are not qualified to render medical opinions regarding matters such as determinations of etiology, which call for specialized medical knowledge. See Espiritu, supra; see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. These statements are not competent medical evidence. The statements of the veteran and R.S. in this regard are accordingly lacking in probative value. With respect to the matter of foreseeability, the IME specifically noted that the "complications of the repair of these hernias are indeed common. As with all surgical complications, those that arise from the repair of ventral hernias are multifatorial . . . I do not foresee that these complications could have been prevented." The additional disability was thus considered by the IME to be an ordinary risk of the treatment provided, and was thus "foreseeable." See 38 C.F.R. § 3.361(d)(2) (2007) The veteran has been accorded ample opportunity to present medical evidence in support of her claim for benefits pursuant to 38 U.S.C. § 1151. If she was dissatisfied with the opinion of the November 2007 IME, she had the opportunity to submit a medical opinion or opinions in his favor of her claim. She has failed to do so. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. Accordingly, the competent medical evidence of record indicates that the additional disability experienced by the veteran was not due to carelessness, negligence, lack of proper skill, and error in judgment on the part of VA or to an event not reasonably foreseeable, and the claim fails on this basis. In summary, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from her March 1992 ventral hernia repair. The benefit sought on appeal is accordingly denied. Additional comment The Board wishes to make it clear that it is well aware of the unfortunate consequences of the veteran's surgery. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As explained above, the Board has decided this case based on the law and regulations, as well as the medical evidence of record. Moreover, the current version of 38 U.S.C. § 1151 was enacted effective October 1, 1997 with the precise purpose of narrowing the award of benefits to exclude situations such as the one presented in this case. See section 422(a) of PL 104-204. The purpose of the 1997 amendment was, in effect, to overrule the decision of the United States Supreme Court in Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994). In that case, the Supreme Court determined that the statutory language in the previous version of 38 U.S.C. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. That version no longer exists. In short, the Board is bound by the law in this case and cannot grant the benefits sought. See 38 U.S.C.A. § 7104 (c) (West 2002). ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of ventral hernia repair, claimed as a result of VA surgery in March 1992, is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs