Citation Nr: 0836082 Decision Date: 10/21/08 Archive Date: 10/27/08 DOCKET NO. 07-29 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for right leg and inguinal problems, diagnosed as persistent ilioinguinal, genitofemoral and iliohypogastric neuralgias, due to VA surgical repair of a right inguinal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran (appellant) served on active duty from September 1951 to October 1952. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Prior to the certification of the appeal in January 2008, the veteran withdrew his appeal with respect to his claim for a higher initial rating for atrophic right testicle with reduced sex drive, erections and energy level. Consequently, this claim is not for current appellate review. FINDING OF FACT Right leg and inguinal problems, diagnosed as persistent ilioinguinal, genitofemoral and iliohypogastric neuralgias, have been shown to be the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical providers, and were not foreseeable consequences of the veteran's right inguinal hernia surgery. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for right leg and inguinal problems, diagnosed as persistent ilioinguinal, genitofemoral and iliohypogastric neuralgias, due to VA surgical repair of a right inguinal hernia, have been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service-connected. A disability or death is a qualifying additional disability 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, 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. 38 U.S.C.A. § 1151 (West 2002). VA regulations, governing the adjudication of claims for benefits under 38 U.S.C.A § 1151(a) were amended, effective September 2, 2004. 69 Fed. Reg. 46,426 (Aug. 3, 2004) (codified at 38 C.F.R. § 3.361). The new regulation implements the current provisions of 38 U.S.C.A. § 1151. To determine whether additional disability exists within the meaning of § 1151, the veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 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. 38 C.F.R. § 3.361(d). 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 § 17.32 of this chapter. The veteran claims that he has right leg and inguinal problems due to surgery performed by VA in June 1997. He has been service connected for atrophic right testicle with reduced sex drive, erections and energy level as a result of that surgery. VA surgical report reveals that the veteran underwent repair of a right inguinal hernia on June 26, 1997. Subsequent treatment for testicular problems in 1997 and 1998 are in the file. Additionally, VA treatment on June 30, 1997 shows a finding of inguinal pain. In July 1997, the record shows that at follow-up, there was weakness of the posterior floor of the inguinal canal. In a March 1999 letter from Dr. Ozer, it was reported that the veteran was seen by him for problems after having a hernia repair. The examiner did not discuss right leg or inguinal problems. On review of the veteran's file in April 2000 by a VA physician, there was no mention of right leg or inguinal problems. In August 2004, a private neurologist, Dr. Bash, stated that he had reviewed the pre and post hernia repair medical records, a statement by Dr. Ozer, interview of the veteran, VA medical records and examinations and medical literature. It was stated that the veteran's right leg complications consisting of pain in his leg and inguinal region, are extremely rare and not reasonably foreseeable and are due to one or all of the following: surgical carelessness, negligence, lack of skill, error in judgment, on the part of VA treatment team. It was reported that VA's lack of rapidly diagnosing and treating the veteran's rare post operative testicular swelling proximately caused his current right side testicular and leg complications. The physician noted the facts regarding the treatment of the veteran by VA, pointing out that prior to June 26, 1997, the veteran had normal legs and that after the procedure, he was treated by VA for complaints in June, July and August 1997 and in October and November 1998. It was summarized that the veteran had pain in the right leg inguinal area with numbness likely secondary to his hernia repair problem. It was stated that the veteran problems were due to faulty surgical technique by VA. Dr. Bash offered reasons including that this was not the foreseeable outcome of this type of surgery. He reported that the veteran's right leg and inguinal area pain were secondary to the surgery induced nerve damage and due to faulty VA surgical team technique. The veteran was examined by VA in July 2006. The claims file was reviewed. The examiner diagnosed residual pain status post right inguinal herniorrhaphy with marked atrophy of the right testes. The examiner offered an opinion that the veteran's right thigh pain was linked to the veteran's prior surgery. It was noted that in was more likely than not that the veteran's inguinal pain could have resulted from an ontoward (sic) event that would not normally have been expected to have occurred. The examiner stated that it was within the purview of his symptoms that the ilio-inguinal and genital branch of the genitofemoral nerves were more likely than not abrupted or incorporated in a suture. In an April 2007 letter, Dr. Bash stated that he conducted a re-review of the veteran's files for the purpose of making a medical opinion. The doctor stated that it was his opinion that the veteran's pain is an unforeseen complication and not due to "natural progression." It was reported that the pain is likely due to lack of skill/error in judgment, negligence/carelessness and/or malpractice with regard to the surgery in June 1997. It was noted that his pain is due to neuralgias in the local nerves and that it was his diagnosis that the veteran has persistent ilioinguinal, genitofemoral and iliohypogastric neuralgias, all of which are severe. It was also stated that the complication of nerve injuries is very very infrequent, and Dr. Bash cited references to support this finding. He summarized that the veteran has post-operative neuralgia and that this complication is unforeseen as it is very unusual. In this case, Dr. Bash has provided a diagnosis for the veteran's complaints of pain, i.e., persistent ilioinguinal, genitofemoral and iliohypogastric neuralgias. Thus, a current diagnosis of disability exists. To establish causation, the evidence must show that the VA 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. 38 C.F.R. § 3.361(c)(1). Here both Dr. Bash and the VA examiner have stated that the veteran's complaints were caused by his surgery in June 1997. As to fault, the VA examiner stated that the inguinal pain could have resulted from an ontoward (sic) event that would not normally have been expected to have occurred. Dr. Bash has specifically stated that the veteran's surgery involved carelessness, negligence, lack of proper skill, error in judgment which supports a finding of fault by VA. Further, he has reported that the resulting neuralgia was not reasonably foreseeable and offered medical references to support that conclusion. Dr. Bash has twice expressed the opinion that the veteran's right leg and inguinal complaints are due to his June 1997 surgery. A VA physician has also indicated that the veteran's complaints are the result of June 1997 VA hernia surgery. Dr. Bash clearly states that the veteran's complications following his VA hernia surgery were due to surgical carelessness, negligence, lack of skill, or error in judgment on the part of the VA medical team. Dr. Bash also stated that the complications were not reasonably foreseeable consequences of the surgery. He provided extensive reasons and bases for his opinions. Since there is no medical evidence to the contrary, and since there is medical evidence that the veteran's persistent ilioinguinal, genitofemoral and iliohypogastric neuralgias resulted from surgical carelessness, negligence, lack of skill, or error in judgment on the part of the VA, compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 is warranted. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for right leg and inguinal problems, diagnosed as persistent ilioinguinal, genitofemoral and iliohypogastric neuralgias, due to VA surgical repair of a right inguinal hernia is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs