Citation Nr: 1316997 Decision Date: 05/23/13 Archive Date: 05/31/13 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 or other post-surgical disorder, claimed as a residual of a coronary artery bypass graft (CABG), performed at a VA medical center (VAMC) in May 1995. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, 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. 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. In August 2012, the Board remanded the Veteran's claim for an additional VA medical opinion. The RO issued a supplemental statement of the case in February 2013, and the appeal is once again before the Board. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Addendum Medical Opinion- The Veteran claims that he suffers from an abdominal defect as a residual of a CABG performed at a VAMC in May 1995. The Veteran recently underwent a VA examination in September 2012. The September 2012 VA examiner determined that the Veteran did not have a ventral hernia but rather a small umbilical hernia and Diastasis recti. The August 2009 VA examiner also did not observe a ventral hernia but rather diagnosed the Veteran with calcification of the xiphoid process which while possibly related to the operation does not represent any deviation from care. He additionally noted evidence of a diastasis recti, but no hernia per se. Nevertheless, the Board notes that there are records such as a June 2004 private treatment note which reflect that the Veteran has a ventral hernia which is "a result of his bypass surgery." May 2006 and July 2006 private treatment records additionally reflect a diagnosis of a ventral hernia. A May 2006 letter from a private treating physician, Board certified in general, laparoscopic, vascular, and bariatric surgery reflected that the Veteran had a ventral hernia and xiphoid calcification from a previous CABG and he would benefit from surgical intervention. It remains unclear why various records in the file reflect a diagnosis of a ventral hernia, while the August 2009 and September 2012 VA examiners did not believe the Veteran had a ventral hernia. These discrepancies must be addressed. Although the September 2012 VA examiner determined that the Veteran does not have a ventral hernia, but instead a diastasis recti and umbilical hernia caused by his obesity, the VA examiner did not reconcile other records in the claims file which reflect that the Veteran does, in fact, have a ventral hernia. In light of the above, the Board finds that a remand is again warranted to address the inconsistencies noted above and provide the Veteran an additional VA opinion. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Caffrey v. Brown, 6 Vet. App. 377 (1994). Social Security Records- Records in the Veteran's claims file reflect that the Veteran has been receiving disability benefits from the Social Security Administration (SSA). VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. 38 U.S.C.A § 5103A(c)(3); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006). Indeed, the Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). As such, these records must be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain SSA records, including the medical evidence used to determine disability eligibility. Any negative search result should be noted in the record. 2. Following the development set forth above, return the Veteran's claims file to the examiner who authored the September 2012 VA medical opinion-or to another qualified medical professional if the original examiner is unavailable. If the examiner determines that an examination is necessary, one should be scheduled. The claims folder must be made available to the examiner for review of the case, and a notation to the effect that this record review took place should be included in the report. The examiner should review the Veteran's claims file and determine whether the Veteran, at any time since his May 1995 CABG surgery, had a ventral hernia or other abdominal defect. In doing so, the examiner should address the fact that various private treatment records reference a diagnosis of a ventral hernia and, to the extent possible, reconcile this diagnosis with the examiner's diagnosis(es). The VA examiner should then provide an opinion on the following points: a. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's abdominal defect or other post-surgical residual, to include diastasis recti, calcification of the xiphoid process and umbilical hernia, 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 or other post-surgical residual, to include diastasis recti, calcification of the xiphoid process and umbilical hernia, could have been avoided? What steps would have been necessary to avoid this outcome? Were they taken? If not, why not? c. Did the providers of the May 1995 surgical treatment exercise the degree of care that would be expected of a reasonable health care provider? Please explain. d. Was the Veteran's abdominal defect or other post-surgical residual, to include diastasis recti, calcification of the xiphoid process and umbilical hernia, reasonably foreseeable? Please explain. How often does CABG surgery result in such a defect. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2012). _________________________________________________ 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) (2012).