Citation Nr: 1127240 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 06-23 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for denervated abdominal wall muscles with eventration/hernia and skin numbness due to treatment at a Department of Veterans Affairs medical center (VAMC). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran, a retired physician, served on active duty from July 1963 to June 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks remand of this matter for additional VA examination. Following review of the record, the Board agrees that additional examination is warranted. The Board also finds that since the Veteran recently submitted medical evidence without a waiver of initial agency of original jurisdiction (AOJ) review, due process concerns require that the evidence be reviewed by the AOJ in the first instance. The Veteran contends that two VA surgical procedures to remove a mid-axillary lipoma resulted in current disability manifested by muscle and/or nerve damage. He alleges that the depth of the surgical incision caused injury to muscle and nerves. This matter was most recently before the Board in December 2010. At such time, the Board determined that an independent medical examination opinion was required to address certain medical questions involving the claim. Specifically, the Board sought opinions from the examiner as to whether the Veteran had additional disability as a result of the VA surgeries performed in July 2002, and if so, whether such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA medical care providers. A report was received in April 2011. The examiner noted that the record did not show evidence of a deep dissection below the level of the muscles or into the muscles. He noted that the Veteran's complaints of disability were not easily explained by the record. He described the post-surgical numbness as "frequently seen near the surgical wound" and noted that "nothing in the reports suggests that there was a nerve injury." He concludes that there was no evidence of negligence or carelessness, lack of proper skill or error in judgment on the part of VA or the surgeons involved. Following receipt of this report, however, the Veteran submitted additional medical evidence from his neurologist, Dr. G. C. G. In the report, the physician notes the existence of some atrophy in the abdominal obliques. The physician notes that the temporal association with the Veteran's symptoms is "enough to consider the surgical procedure causative." The appellant did not waive initial RO review of the evidence. See generally, 38 C.F.R. § 20.1304; Disabled American Veterans v. Principi, 327 F.3d 1339 (Fed. Cir. 2003)(holding that decisions of the Secretary are subject to one review on appeal). In view of the above, and to avoid any prejudice to the Veteran (see Bernard v. Brown, 4 Vet. App. 384 (1995)), the matter on appeal must be returned to the RO for consideration of the claim in light of all additional evidence added to the record. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, additional clinical assessment and medical opinion is necessary to adequately address the Veteran's claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to examine the nature, extent, and etiology of any denervated abdominal wall muscles with eventration/hernia and skin numbness. Following a review of the claims file, the examiner should offer an opinion as to the following: (a) Does the Veteran have additional disability as a result of the VA surgeries performed on July 3, 2002, and July 10, 2002? If so, what is the additional disability? In order to determine whether a veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of surgical treatment upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). (b) If additional disability is present, an opinion should be provided as to whether it is at least as likely as not that any additional disability was caused by VA surgical treatment; and, the proximate cause of the disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment; or was the result of an event not reasonably foreseeable. 2. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC). If the benefit sought on appeal remains denied, the Veteran should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. 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. 2010). _________________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).