Citation Nr: 1229014 Decision Date: 08/23/12 Archive Date: 08/30/12 DOCKET NO. 06-32 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to VA compensation under the provisions of 38 U.S.C.A. § 1151 for an abdominal defect, claimed as a residual of a coronary artery bypass graft, performed at a VA medical center (MC) in May 1995. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2008, a videoconference hearing was held before the undersigned Veterans Law Judge, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). The issue was fully explained and the evidence discussed, including the possible submission of additional evidence. The transcript of the hearing is in the claims folder. In October 2008, the Board determined that new and material evidence had been received to reopen the claim and remanded the matter for a medical examination and opinion. The examination was conducted and a medical opinion received. In March 2010, the Board reviewed the claim and denied the appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court determined that the medical opinion did not comply with the Board's remand, vacated the Board's 2008 decision, and remanded the matter to the Board. The issue was previously stated as seeking compensation for a ventral hernia, as diagnosed by the Veteran's private physicians. However the VA examiner did not find a true hernia but a heavily calcified xiphoid remnant and evidence of diastasis recti. [Diastasis recti abdominis is the separation of the rectus muscles of the abdominal wall. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 461 (28th ed., 1994).] It is clear that the Veteran is seeking benefits for this defect by whatever name, so the Board has expanded the issue from a ventral hernia to an abdominal defect. 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 on his part. REMAND The Court has held that a remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders and that VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). It is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The January 2012 Court decision found that the medical opinion obtained did not comply with the Board's October 2008 remand in important respects: First, the examiner referred to an "acceptable standard of care" and the Court was unable to determine whether the examiner applied the appropriate proximate cause standard articulated by the Board in its remand instructions and contained in the statute. Additionally, the examiner provided no rationale for his conclusion that the operation did not deviate from an "acceptable standard of care." He simply stated that "it appears that [the appellant] has experienced a satisfactory cardiac result from the procedure." However he did not explain how he reached his conclusion. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Also, the discussion of foreseeability was insufficient. The examiner did not discuss why the defect was or was not reasonably foreseeable. Accordingly, the case is REMANDED for the following action: The Board has reworded its previous remand to facilitate a response in accordance with the substance of the previous remand and the Court decision. 1. The agency of original jurisdiction (AOJ) should return the claims folder to the physician who examined the Veteran in August 2009 and provided a medical opinion regarding his coronary artery bypass graft residuals. If that physician is not available, a similarly qualified medical professional may provide the opinion. If further examination of the Veteran or tests or studies would help formulate the opinion, they should be scheduled. The reviewing medical professional should review the claims file, including specifically all records related to the Veteran's May 1995 surgery, the post-operative period and the subsequent diagnoses of ventral hernia, and provide an opinion on the following points: a. Is it at least as likely as not (a 50/50 or greater probability) that the Veteran's abdominal defect was due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the May 1995 surgical treatment? Please explain. b. Is there any way that the Veteran's abdominal defect could have been avoided? What steps would have been necessary to avoid this outcome? Were they taken? If not, why not? c. Was the Veteran's abdominal defect reasonably foreseeable? Please explain. How often does heart surgery result in such a defect? 2. After undertaking any other development deemed appropriate, the AOJ should consider the issue on appeal in light of all information or evidence received. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is 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. 2011). _________________________________________________ BARBARA B. COPELAND 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) (2011).