Citation Nr: 0814115 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 02-17 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for neuropathy of the feet and ankles resulting from treatment received during a hospitalization in a VAMC from July 29, 1991, to August 6, 1991. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability involving the groin, back, and/or legs, resulting from treatment received during a hospitalization in a Department of Veterans Affairs Medical Center (VAMC) from July 29, 1991, to August 6, 1991. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for depression resulting from disabilities claimed to have been caused by treatment received during a hospitalization in a VAMC from July 29, 1991, to August 6, 1991. [The issue of whether unreimbursed medical expenses were properly counted for the calendar year 2005, for determining countable income for pension purposes is the subject of a separate decision.] REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from March 1953 to May 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of May 2002 and September 2005. In February 2008, the appellant appeared at a videoconference hearing held before the undersigned. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional back and leg disability was previously denied in an unappealed rating decision dated in June 1996, on the basis that no additional disability had been shown. In November 2004, the Board reopened the claim, concluding, in essence, that evidence of chronic groin pain was sufficient to reopen the claim. Subsequent to that Board decision, the Circuit Court held that a claim based on a distinct and separate diagnosis is a new claim. Boggs v. Peake, No. 2007- 7137 (Fed. Cir. Mar. 26, 2008). However, since the Board explicitly relied on symptoms involving groin pain to reopen the claim, that must be considered as part of the reopened claim. See Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has obligation to explore all legal theories, including those unknown to the veteran, by which he can obtain benefits sought for the same disability). In this case, the veteran has specifically complained of groin pain in connection with the claim since the beginning. In September 2005, the RO denied a separate claim for compensation under 38 U.S.C.A. § 1151 for additional disability consisting of neuropathy of the feet and ankles. Although pertaining to the same hospitalization, this is a new disability, not previously mentioned, and, hence, a separate claim. See Boggs. Although later combined with the first issue, the issue was initially properly developed as a separate claim, with a separate statement of the case and separate substantive appeal, and is thus properly before the Board. The claim pertaining to a depressive disorder is likewise a separate claim. However, it has previously been erroneously characterized as a claim for service connection. However, the veteran's contentions have addressed solely depression as due to the August 1991 surgery, and disabilities he claims were due to that surgery. The May 2001 statement accepted as a claim stated that he had depression as a result of the pain and discomfort since the surgery. Moreover, although the RO discussed direct service connection in the May 2002 decision and October 2002 statement of the case, the issue was framed as "service connection for depression, as secondary to residuals, right inguinal hernia." Secondary service connection may only be granted for disabilities which are secondary to service-connected disabilities; compensation for a disability secondary to a disability incurred due to VA treatment would become part of the "additional disability," under claim for compensation under 38 U.S.C.A. § 1151, and not a service-connected disability. The Board has recharacterized the veteran's claim to more accurately reflect his stated interests. The issues of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability involving the groin, back, and/or legs, and for depression resulting from treatment received during a hospitalization in a Department of Veterans Affairs Medical Center (VAMC) from July 29, 1991, to August 6, 1991 are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Neuropathy of the feet and ankles has not been medically attributed to VA hospital care from July 29, 1991, to August 6, 1991. CONCLUSION OF LAW The criteria for compensation for neuropathy of the feet and ankles, claimed to have resulted from VA hospital care from July 29, 1991, to August 6, 1991, have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R.§ 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), imposes obligations on VA in terms of its duties to notify and assist claimants. In April 2005, prior to the initial adjudication of the claim for 38 U.S.C.A. § 1151 compensation for neuropathy of the feet and ankles, the RO notified the veteran of the information necessary to substantiate that claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was also told him to provide any relevant evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He was informed of the specific types of evidence he could submit that would be pertinent to his claim, and he was told that it was still his responsibility to support the claim with appropriate evidence. In March 2006, he was provided with information regarding ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), the claim was readjudicated, and supplemental statements of the case were provided, thus correcting the timing defect. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the duty to notify has been satisfied. The Board also concludes VA's duty to assist has been satisfied. All available, potentially relevant VA treatment records have been obtained, including the records pertaining to the VA hospitalization from July 29, 1991, to August 6, 1991. In addition, private records identified by the veteran have been obtained. The appellant has not identified any other potentially relevant records. A VA medical examination was obtained in May 2005, and is adequate as to the issues decided herein. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The veteran testified at a hearing before the undersigned in February 2008. Thus, the Board finds that all necessary notification and development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits of 38 U.S.C.A. § 1151 Claim -Neuropathy Compensation or DIC shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran's own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or 2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. Thus, in order to establish entitlement to compensation under this law, there must be additional disability, not the result of the veteran's own willful misconduct, which was caused by VA treatment, and such additional disability must be either caused by VA fault, or not reasonably foreseeable. Prior to the right hernia repair surgery at issue, VA treatment records show that in June 1991, it was noted that the veteran had a history of a left inguinal hernia repair in 1986. At that time, a right inguinal hernia had also been diagnosed, but not repaired. Now, the veteran complained that it had lately become symptomatic. He had pain in the morning, and noted bulging. On examination, a small hernia palpated medially. Records of the VA hospitalization from July 29, 1991, to August 6, 1991, show that the veteran reported swelling in the right inguinal region off and on for the last three months, which was increased by lifting heavy loads, straining, or coughing. It was decreased by lying down. He signed an informed consent form prior to the operation, although the specific risks were not set forth. The operative report shows that a hernia sac was transected and cut near the posterior wall of inguinal canal, which was strengthened with sutures. A small lipoma of the cord was removed as well. He tolerated the procedure well. The day after the surgery, he had swelling in right inguinal area, and complained of pain in the incision. On August 2, he had no complaints of pain, but was moving very slowly. On August 4, he complained of discomfort when moving about, although he was walking in the hall. The incision line was slightly edematous but there was no redness or drainage. At the time of discharge, the incision was clean and dry; pain was controlled but not absent; and he was told not to lift more than 5 pounds for 6 weeks, or drive for 2 weeks. The first outpatient follow-up, on August 13, 1991, noted that he continued to have significant pain in the groin and was recovering more slowing than with his hernia repair 5 years ago. On examination, the right hernia scar was healing normally, but he had a marble size induration in the lower third area, without signs of inflammation. On August 30, 1991, incisional pain was noted to have resolved. He was advised to avoid heavy lifting for 8 weeks. The veteran contends that he has developed neuropathy in his feet and ankles, which he believes is due to the 1991 right inguinal hernia surgery. As can be seen in the summary above, there were no complaints of foot symptoms during the hospitalization from July 29, 1991, to August 6, 1991. VA medical records show that in February 2000, the veteran complained of occasional numbness and burning in his feet. In April 2001, he complained of pain in the balls of his feet. In May 2003, he complained of neuropathic pain in both feet. On a VA examination in May 2005, the veteran said that the 1991 hernia surgery had also caused neuropathy of his feet. His main complaint seemed to be about the neuropathy in his feet. The examiner noted that the veteran had read that neuropathy could be a side effect of surgery, which he had interpreted to mean that any surgery could cause any neuropathy. However, the examiner did not believe that there was any relationship between the neuropathy on the soles of his feet, with extension to the ankles, and the hernia surgery. He noted that different nerve distributions were involved. Thus, he concluded that it was NOT as likely as not that the complaints of neuropathy were in any way- directly or indirectly-related to the hernia repair done in 1991. Subsequent VA treatment records show that in December 2005, it was noted that the veteran had peripheral neuropathy. However, there is no medical evidence linking his neuropathy of the feet to the 1991 hernia surgery. The only medical evidence discussing whether the neuropathy was due to the hernia surgery determined that there was no connection. Neither the Board nor the veteran possesses the necessary medical expertise to challenge the results of this medical opinion. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (a layman is not competent to offer a diagnosis or medical opinion); Jones v. Principi, 16 Vet. App. 219, 225 (2002) (Board must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision); Colvin v. Derwinski, 1 Vet.App. 171 (1991) (Board is prohibited from making conclusions based on its own medical judgment). That opinion was based on review of the relevant medical records, and noted that different nerve distributions were involved. In determining whether a veteran has an additional disability due to VA medical care, VA compares the veteran's condition immediately before the beginning of the relevant care or treatment to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). In this case, the medical records do not show any complaints of neuropathy or foot pain until several years after the surgery. Moreover, there is no medical evidence to contradict the medical conclusion that there was no relationship between the August 1991 inguinal hernia surgery, and the neuropathy of the feet and ankles which developed several years later. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation under 38 U.S.C.A. § 1151 for neuropathy of the feet and ankles claimed to have resulted from a VA hospitalization from July 29, 1991, to August 6, 1991, is denied. REMAND The medical evidence of record indicates that the veteran may have had a longer than expected convalescence from his inguinal hernia surgery in August 1981. According to his own testimony, he eventually felt better, but symptoms of pain returned in about a year or two. VA treatment records show that in February 1994, he continued to complain of pain in the right inguinal area along the superior edge of the incision, radiating to the right groin with activity. In March 1994, it was noted that the veteran continued to complain of right inguinal pain which radiated into the groin with activity. A computerized tomography (CT) scan in December 1993 had not shown any evidence of hernia, and the impression was probable nerve entrapment. Subsequent medical records show that the severity and etiology of the veteran's right inguinal pain has never been established. On a February 1996 cardiology consult, the veteran also complained of pain in the prior right inguinal hernia site. He was noted to be depressed, with some degree of occupation with somatic symptoms. In April 2000, the veteran had a recurrence of the right inguinal hernia performed privately. Although initially quite pleased with the results, a year later, he was noted to still have pain whenever he exerted himself. He had right inguinal swelling on examination. In May 2001, M. Wenger, M.D., reported that the symptoms described on that occasion did not seem to be typical of an entrapment type syndrome. However, VA records show that a surgery consult in December 2003 resulted in an impression of an entrapped nerve. On the May 2005 VA examination, the examiner concluded that there were no objective signs of additional disability on examination. However, in support of his opinion, the examiner also noted that the VA outpatient treatment records he reviewed did not show complaints of pain resulting from the initial inguinal hernia surgery. On the contrary, however, the VA medical records on file are replete with complaints of chronic inguinal pain. Private records likewise show complaints of chronic pain. The Board is not obliged to accept an opinion based on inaccurate medical history. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Moreover, although the examiner found no objective disability to be present at that time, evidence since then includes a December 2005 VA outpatient treatment with an impression of a trapped nerve in the mesh. In addition, in March 2007, S. Bruns, M.D., evaluated the veteran, and reported an impression of right ilioinguinal nerve entrapment status post herniorrhaphy. With respect to the depression, the evidence is similarly inconsistent. In May 2001, he underwent a comprehensive VA mental health evaluation, which concluded that he had depression due to medical condition, with the chronic pain since the 1991 hernia surgery noted to be the medical condition. In addition, in November 2002, W. O'Brien, M.D., said that the veteran had slowly developed depression secondary to the presence of chronic pain at the site of a previous right sided inguinal herniorrhaphy in 1991. VA mental health treatment records dated in December 2002 note that the veteran's depression seemed to be secondary to injuries. The diagnosis was organic affective disorder. However, VA mental health clinic treatment records show that in December 2001, depression for 8 years correlating with declining health and multiple deaths of friends and family members, was noted, as well as chronic pain following hernia surgery. The most recent records show a diagnosis of adjustment reaction with depressed mood, with no notation as to the cause of the adjustment reaction. There is, however, considerable evidence of chronic pain in the site of the surgery itself, and an entrapped nerve has been suspected as the cause on many occasions, by both private and VA doctors, although never confirmed. Depression, or depressive symptoms, have also been associated with the complaints of chronic pain, but, again, not with sufficient particularly as to reach a determination. Hence, additional examinations must be afforded, to determine whether the veteran has a diagnosed organic disability, to include an entrapped nerve, resulting from the August 1991 right inguinal hernia surgery, and whether he has a psychiatric disability related to the surgery. If so, it must be determined whether such was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. See 38 U.S.C.A. § 1151. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a surgical and/or neurological VA examination by an appropriate specialist to determine whether the surgery performed during a VA hospitalization from July 29, 1991, to August 6, 1991, resulted in additional groin/inguinal disability, to specifically include nerve entrapment. The diagnosis of any such additional disability should be provided. If the examiner finds that additional disability is present, the following questions should be addressed: * Was the additional inguinal disability due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment? * Did VA fail to exercise the degree of care that would be expected of a reasonable health-care provider in treating the veteran's symptoms? * Was the additional disability an event that was not reasonably foreseeable? This question also includes whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the VA informed consent procedures currently in effect. The conclusions must be based on medical findings, which must be reported in detail. It is imperative that the claims files be made available to and be reviewed by the examiner in connection with the examinations. It would be helpful if the examiner would use the following language in his or her opinion, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The complete rationale for all opinions expressed should be provided. 2. Schedule the veteran for a VA psychiatric examination by an appropriate specialist to determine whether the surgery performed during a VA hospitalization from July 29, 1991, to August 6, 1991, resulted in an acquired disability, connected with chronic pain. The diagnosis of any such additional disability should be provided. If the examiner finds that additional disability is present, the following questions should be addressed: * Was the additional psychiatric disability due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment? * Did VA fail to exercise the degree of care that would be expected of a reasonable health-care provider in treating the veteran's symptoms? * Was the additional disability an event that was not reasonably foreseeable? This question also includes whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the VA informed consent procedures currently in effect. The conclusions must be based on medical findings, which must be reported in detail. It is imperative that the claims files be made available to and be reviewed by the examiner in connection with the examinations. It would be helpful if the examiner would use the following language in his or her opinion, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The complete rationale for all opinions expressed should be provided. 3. After ensuring that any actions needed to comply with VA's duty to assist and notice obligations are accomplished, adjudicate the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability involving the groin, back, and/or legs, and for a depressive disorder resulting from treatment received during a hospitalization in a VAMC from July 29, 1991, to August 6, 1991. If either claim is denied, furnish the veteran and his representative with a supplemental statement of the case, and provide an opportunity for response, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs