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