Citation Nr: 1111784 Decision Date: 03/24/11 Archive Date: 04/06/11 DOCKET NO. 08-30 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection under the provisions of 38 U.S.C.A. § 1151 for abdominal wall diastasis claimed to be due to left renal surgery performed by the VA Medical Center in Bay Pines, Florida in August 1986 and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from April 1968 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky where the RO reopened the claim and denied it on the merits. Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnette v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Thus, the issue on appeal has been characterized as shown above. As will be explained more thoroughly below, the Board is reopening the claim. The merits of the 38 U.S.C.A. § 1151 issue on appeal is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. An unappealed December 2001 rating decision denied a claim of entitlement to service connection under the provisions of 38 U.S.C.A. § 1151 for an abdominal disorder, claimed as an incisional hernia, claimed to be due to an August 1986 surgical procedure performed at the VA Medical Center in Bay Pines, Florida finding no medical evidence indicating any carelessness, negligence or any other instance of fault by the VA causing the Veteran's current disorder; the Veteran did not appeal and the decision became final. 2. Evidence submitted since December 2001 raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The December 2001 rating decision that denied the claim for entitlement to service connection under the provisions of 38 U.S.C.A. § 1151 for an abdominal disorder, claimed as an incisional hernia, claimed as due to an August 1986 surgical procedure performed at a VA medical center is final, but evidence received since December 2001 in relation to the claim is new and material, and, therefore the claim may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Under the provisions of 38 U.S.C.A. § 1151 service connection is warranted for an additional disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable in providing medical care. In order to establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care, it must be shown that (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. See 38 C.F.R. § 3.361(d) (emphasis added). The Veteran contends that his August 1986 surgical procedure to remove a left kidney stone resulted in significant complications, to include abdominal pain, muscle weakness and bulging. He claims his abdomen continues to deteriorate as a result of the 1986 surgery done at the VA medical center in Bay Pines, Florida. The RO denied the claim in a December 2001 decision finding no evidence establishing the VA medical center acted careless, negligent or some similar instance of fault. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a). No correspondence was received during the applicable time frame and, therefore, the December 2001 rating decision is final. As of December 2001, the evidence consisted of the Veteran's VA outpatient treatment records from the VA Medical Center in Cincinnati from July 1987 to June 2000 and private treatment records from the University of Cincinnati Hospital from 1987. These records confirm complaints immediately after the 1986 surgery of left flank pain with a diagnosis of myofascial post incisional pain of the left flank and suspected incisional hernia. Potentially material evidence since December 2001 include the actual surgical records from August 1986 to September 1986 as well as subsequent VA treatment from 1986 to 2009; a July 2007 VA examination; and various lay statements from the Veteran and Veteran's family and friends describing current pain and symptoms of his abdomen. Except as provided in Section 5108 of this title, when the RO disallows a claim, the claim may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective August 29, 2001. The instant claim to reopen was filed after that date, and the revised definition applies. Under the revised definition, "new evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Again, the RO denied the Veteran's claim in December 2001 because there was no evidence indicating the VA was at fault for causing an additional abdominal disability due to carelessness, negligence or some other instance of fault in providing medical care. For evidence to be material in this case, therefore, it would have to relate to this fact. In this case, the new evidence provides more detail of the nature of the Veteran's 1986 surgery and subsequent complaints through the years. For example, the Veteran did present with bulging at the incisional site in 1987. While first suspected to be an incisional hernia, diagnostic tests did not actually confirm a hernia. Rather an April 2000 CAT scan indicates atrophy of the internal and external oblique muscles, but no hernia. More recent VA outpatient treatment records through 2009 indicate complaints of pain secondary to a "collapsed abdominal wall." The Veteran was afforded a VA examination in July 2009 where the examiner opined that the Veteran's abdominal wall diastasis is as likely as not due to the 1986 renal surgery. The examiner, however, further indicated that the diastasis is a known complication for approximately 11-15% of abdominal surgeries. The examiner did not specifically address whether the VA acted carelessly, negligently or is otherwise at fault in causing the additional disability. In short, the new evidence indicates the Veteran does indeed have an additional disability, namely abdominal wall diastasis, as a result of his 1986 surgery. No medical professional has ever indicated whether this new disability is due to some sort of carelessness, negligence, lack of proper skill or some other instance of fault by the VA. Indeed the July 2007 VA examiner indicates the Veteran's disability is a known complication of his abdominal surgery. Although not dispositive, the Board concludes the new medical evidence raises a substantial possibility of substantiating the Veteran's claim and, therefore, may be reopened. (CONTINUED ON NEXT PAGE) The Veterans Claims Assistance Act (VCAA) The VCAA describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Since the claim is being reopened, any deficiencies in notice were not prejudicial to the Veteran. ORDER As new and material evidence has been submitted, the issue of entitlement to service connection under the provisions of 38 U.S.C.A. § 1151 for abdominal wall diastasis claimed to be due to left renal surgery performed by the VA Medical Center in Bay Pines, Florida in August 1986 is reopened and to that extent the claim is granted. REMAND The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, as indicated above, the Veteran claims his current abdominal weakness and diastasis is due to complications from a 1986 VA surgery done to remove a kidney stone. He indicates he complained of left flank pain immediately with bulging, but his complaints were largely ignored or misdiagnosed as an incisional hernia until his abdominal wall ultimately collapsed. The medical evidence confirms the Veteran underwent surgery at the VAMC in Bay Pines, Florida in August 1986 to remove a left kidney stone. Thereafter, as early as May 1987 the Veteran of left flank pain with bulging. Diagnostic tests, through 2000, returned within normal limits. Initially, doctors believed the Veteran had myofascial pain. Later, an incisional hernia was suspected. Ultimately, the Veteran was diagnosed with abdominal wall diastasis. The RO did afford the Veteran a VA examination in July 2007 where the examiner confirmed the Veteran's diagnosis as abdominal wall diastasis and opining that the diagnosis is as likely as not due to the 1986 renal surgery. The VA examiner further noted that abdominal wall diastasis is a known complication occurring in approximately 10-15% of all abdominal surgeries. Although opining that the complication was foreseeable, the examiner did not opine whether the Veteran's diagnosis of abdominal wall diastasis was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA. Accordingly, the Board finds the VA examination incomplete to render a decision here. For these reasons, a new VA examination is indicated. The Board also finds noteworthy that this claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151 was received in September 2006. Therefore, it must be adjudicated in accordance with the current version of 38 U.S.C.A. § 1151. The amended version of 38 U.S.C.A. § 1151 has added the requirement that there must be evidence showing that the additional disability for which benefits are sought was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA or by an event not reasonably foreseeable. Effective September 2, 2004, the regulations pertaining to claims for compensation pursuant to 38 U.S.C.A. § 1151 filed on or after October 1, 1997, were again amended. See 69 Fed. Reg. 46,426 (Aug. 3, 2004) [adding 38 C.F.R. § 3.361]. Those regulations largely implemented the provisions of 38 U.S.C.A. § 1151. 38 C.F.R. § 3.361 substantively changed the standard in which § 1151 claims are adjudicated. For example, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care, it must be shown that (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. See 38 C.F.R. § 3.361(d) (emphasis added). In contrast, the prior version, 38 C.F.R. § 3.358, merely indicates carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part must be shown. Id. The prior version did not itemize ways of establishing a showing of carelessness. In short, for claims filed prior to October 1, 1997, 38 C.F.R. § 3.358 applies. Claims filed on or after October 1, 1997, however, must be adjudicated under the new provisions of 38 C.F.R. § 3.361. In this case, the Veteran's claim was clearly filed after October 1, 1997, specifically in September 2008. The RO adjudicated the Veteran's claim, however, under 38 C.F.R. § 3.358. Indeed, § 3.358 specifically indicates that, "This section applies to claims received by VA before October 1, 1997....For claims received by VA on or after October 1, 1997, see § 3.361." 38 C.F.R. § 3.358(a) (2010). The RO should readjudicate the Veteran's claim giving proper consideration of the current laws and regulations relevant to his claim as well as informing him of the current elements necessary to establish his claim. Corrective action must be taken. Accordingly, the case is REMANDED for the following action: 1. The RO must ensure that all VCAA notice obligations are satisfied in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, implementing regulations, interpretative precedent Court decisions, and any other applicable legal precedent concerning the claim for compensation under 38 U.S.C. § 1151. Specifically, the RO must notify the Veteran of the current elements necessary to establish a 38 U.S.C. § 1151 claim as amended in 38 C.F.R. § 3.361. 2. Obtain the Veteran's medical records and treatment from the VA medical system in Bay Pines, Florida from July 1986 to September 1986, to include any and all informed consent forms the Veteran signed prior to his August 1986 surgery; and the VA medical system in Cincinnati, Ohio from November 2009 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. After obtaining the above records to the extent available, schedule the Veteran for an appropriate examination for his claimed abdominal wall diastasis to determine the extent and likely etiology of any condition(s) found, specifically addressing the following: Does the Veteran currently have additional disability, to include abdominal wall diastasis, that were at least as likely as not (1) caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Bay Pines, Florida VA Medical Center in providing the Veteran's renal surgery to remove a kidney stone in August 1986; or (2) is due to an event not reasonably foreseeable. The examiner should provide a rationale for all opinions expressed. The claims folder must be reviewed by the examiner(s) and the examiner(s) should provide a complete rationale for any opinion given without resorting to speculation resolving all conflicting medical opinions, to include the opinion rendered by a VA examiner in July 2007. It would be helpful if the examiner would use the following language, 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 a 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. 4. After the above is complete, readjudicate the Veteran's claim, specifically considering the criteria under 38 C.F.R. § 3.361 (2008). If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative. They should be given an opportunity to respond, before the case is returned to the Board. The Veteran 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The claims 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. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs