Citation Nr: 1317345 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-08 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for bronchial asthma, currently evaluated as 60 percent disabling. 2. Entitlement to 38 U.S.C.A. § 1151 compensation for a ruptured appendix, abdominal hernia, scars, and abdominal deformity. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 2006 and December 2008 of the St. Petersburg, Florida, Department of Veterans Appeals (VA) Regional Office (RO), which denied an increased rating for bronchial asthma and a compensation claim under 38 U.S.C.A. § 1151 for a ruptured appendix, abdominal hernia, scars, and abdominal deformity, respectively. The Veteran presented oral hearing testimony at a RO hearing in June 2009 and again before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in August 2011. A transcript of both hearings are of record and associated with the claims folder. In March 2012, the Board remanded the instant claims for further development. FINDINGS OF FACT 1. The Veteran's bronchial asthma is not productive of FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent predicted, or; more than one attack per week with episodes of respiratory failure, or daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 2. The competent and credible evidence of record does not establish a ruptured appendix, abdominal hernia, scars, or abdominal deformity as a result of any care or treatment by VA. CONCLUSIONS OF LAW 1. The criteria in excess of 60 percent for bronchial asthma have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.97, Diagnostic Code (DC) 6602 (2012). 2. The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for ruptured appendix, abdominal hernia, scars, or abdominal deformity as a result of care or treatment by VA have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The VCAA duty to notify was satisfied by way of letters sent to the Veteran in June 2008 and August 2008. The letters fully addressed all notice elements. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With those letters, the RO effectively satisfied the notice requirements with respect to the issues on appeal. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. The notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim(s). This duty includes assisting him or her in the procurement of service treatment records and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's VA treatment, hospitalization, and private medical records, with the claims file. No other evidence was identified in connection with these claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. The Veteran underwent VA examination in August 2006, April 2008, November 2008, June 2009, and April 2012. Some examiners, but not all, reviewed the claims folder in connection with the claims. However, according to Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed. The examinations were thorough examinations of the Veteran, and the findings regarding the Veteran's service-connected bronchial asthma and his claimed ruptured appendix were supported by sufficient rationale. The Board finds that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board also notes that the Veteran applied for Social Security Disability Benefits. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Federal Circuit also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records. Here, as discussed, the Veteran applied for SS disability benefits. Moreover, as to the claims being decided on appeal, these SSA records were of limited relevance. The SS examiner, however, did give pertinent information regarding the Veteran's inability to complete pulmonary function tests (PFTs) sufficient for rating purposes, due to his abdominal condition. Further, the Veteran was provided an opportunity to set forth his contentions at a RO hearing in June 2009 and an August 2011 Travel Board hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, both the DRO and the undersigned VLJ identified the issues on appeal. They sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Therefore, not only were the issues "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet.App. at 497. As such, the Board finds that, consistent with Bryant, the DRO and undersigned VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claims based on the current record. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all of the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's service-connected disability is evaluated as bronchial asthma pursuant to 38 C.F.R. §4.97, DC 6602. Service connection was granted for bronchial asthma by rating decision of August 1970. A 10 percent rating was awarded, effective April 1970. By rating decision of September 2006, the 10 percent rating was increased to 30 percent, effective June 2006. The Veteran disagreed with the 30 percent rating in a notice of disagreement of March 2007. By rating decision of September 2007, the 30 percent rating was increased to 60 percent, effective June 2006. The 60 percent rating has been in effect since that date. Regulation states that ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. 38 C.F.R. § 4.96. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Bronchial asthma is evaluated, in part, based upon the results of PFTs, specified in terms of forced expiratory volume in one second (FEV-1) and forced vital capacity (FVC). 38 C.F.R. §§ 4.96, 4.97. When evaluating asthma based on PFTs, the post-bronchodilator results are used unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5). In such cases the pre-bronchodilator results are to be used. Id. A 100 percent rating is assigned if FEV-1 is less than 40 percent predicted, or; FEV-1/FVC is less than 40 percent because of bronchial asthma, or; there is more than one attack of bronchial asthma per week with episodes of respiratory failure, or; if bronchial asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. 38 C.F.R. § 4.97. Diagnostic Code 6602. A 60 percent evaluation is assigned if FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent because of bronchial asthma, or; there are at least monthly visits to a physician for required care of exacerbations of asthma, or; there are intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids for asthma. Id. A 30 percent rating is assigned if FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, due to bronchial asthma, or; bronchial asthma is treated with daily inhalational or oral bronchodilator therapy, or; bronchial asthma is treated with inhalational anti-inflammatory medication. Id. A 10 percent rating is assigned if FEV-1 of 71 to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, due to bronchial asthma or; there has been intermittent inhalational or oral bronchodilator therapy for bronchial asthma. Id. The Veteran underwent a VA examination in August 2006. He complained of shortness of breath and wheezing. He indicated that his asthma attacks occurred about twice a week and lasted for one hour. He complained of having a feeling of being unable to fill his lungs. There was no weight loss or gain related to his respiratory condition within the year prior to his examination. He was medicated with Albuterol, Mometasone, Montelukast, Flunisolide, Loratadine, and antibiotics. He had no history of pulmonary/right ventricular hypertrophy or pulmonary hypertension. Physical examination revealed his lungs were nonlabored. He had breath sounds with coarse rales in the left base. There was no rhonchi. The examiner stated that he initially heard wheezing with one breath and then no other wheezing. There was some decreased respiratory excursion. There was no use of the accessory muscles of breathing. PFTs showed FVC of 53 percent of predicted and FEV-1 of 45 percent of predicted. FEV-1/FVC was not reported. Spirometry and lung volumes showed severe obstructive impairment. The Veteran underwent VA examination in April 2008. It was noted that the Veteran smoked cigars off and on since college and that at the time of the examination, he smoked one cigar per day. He had not smoked cigarettes since 1989. Medical history revealed no evidence of hospitalization or surgery related to the Veteran's bronchial asthma. The Veteran had a history of weekly asthma attacks and clinical visits for exacerbations less than one visit per year. He had daily, productive cough and daily wheezing. He had dyspnea on exertion but never at rest. He complained of chest pain on occasion with no history of respiratory failure. PFT showed FEV-1 of 49 percent of predicted. FEV-1/FVC was reported as 88 percent of predicted. The examiner stated that the Veteran was unable to produce acceptable and reproducible spirometry data. Numerous attempts were made. The examiner stated that the Veteran's effort was questionable. In February 2009, the Veteran was evaluated for Social Security disability benefits. The Social Security examiner indicated, in pertinent part, that he was not convinced that the Veteran was able to perform a valid PFT secondary to his abdominal pain. The Veteran underwent a VA examination in June 2009. The Veteran claimed his bronchial asthma had become progressively worse in the 3 years prior to the examination, with dyspnea which was stated to be related to several abdominal surgeries and difficulty controlling his abdominal muscles. The Veteran indicated use of inhaled bronchodilators 3 times a day and an inhaled anti-inflammatory medication 1 time per day. He indicated that he did not use oral steroids, parenteral steroids, antibiotics, or other immunosuppressive medications. There was no history of trauma to the respiratory system, of respiratory system neoplasm, pneumothorax, or empymea. He had asthma attacks 3 or more times per week and he had clinical visits for exacerbation of his asthma 1 to 2 times a year. He had non-productive coughing 1 to 7 times per day. There was a history of hemoptysis, occasionally. He had constant or near constant wheezing. He had dyspnea. His dyspnea was frequent at rest, on mild exertion, and on severe exertion. It was occasional on moderate exertion. There was a history of anorexia. He had chest pain occasionally at rest, but never on exertion. There was no history of respiratory failure. Chest x-ray results showed scattered areas of pulmonary scarring with no new pulmonary consolidation or pleural effusion. PFT showed FEV-1 of 42 percent of predicted, FVC of 41 percent of predicted, and FEV-1/FVC of 82 percent of predicted. The Veteran's bronchial asthma indicated mild impairment on chores and shopping, prevented sports, and showed moderate impairment on exercise and recreation. There was no impairment on traveling, bathing, feeding, dressing, toileting, and grooming caused by his bronchial asthma. It was noted that the Veteran's standing and sitting was limited to 30 minutes and he was unable to lift more than 20 pounds. He also stated that he was no longer able to ride bicycles or water ski. The Veteran testified before a DRO at a RO hearing in June 2009. He testified that he had only been hospitalized 2 or 3 times for his bronchial asthma since 1970. He also related that PFT caused him pain because of his abdominal surgeries and problems. He stated that he believed his last hospitalization for bronchial asthma was in 2002 or 2003. The Veteran also testified at a Travel Board hearing before the undersigned in August 2011. The Veteran stated that he used inhalers on a daily basis for his bronchial asthma. He had treatments 4 times a day. He testified that he was unaware of whether his medication contained corticosteroids. He also indicated that because of his hernia surgeries, an accurate PFT was not obtainable. He testified that he had sporadic episodes of respiratory failure. When asked to elaborate, he indicated that he thought he was having respiratory failure because he required the use of his rescue inhaler at that time. Pursuant to the Board's March 2011 remand, the Veteran underwent a VA examination in April 2012. The evidence of record showed that the Veteran had not had any asthma attacks with episodes of respiratory failure within the 12 month period prior to the examination. He reported that in the prior year, he went to physician visits less frequently than monthly for exacerbations of his asthma. The Veteran declined repeat PFTs; his last PFT was performed in June 2009. The examiner stated that it was at least as likely as not the Veteran's FEV-1/FVC findings at that time reflected the Veteran's most accurate pulmonary disability. He stated that although the Veteran's FEV-1 and FVC may reflect poor effort due to his abdominal wall condition, it appeared they were effected equally. He indicated that because of the Veteran's abdominal complaints of pain, he did not believe the Veteran was intentionally being difficult or putting forth a poor effort. After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period under appeal, the Veteran's asthma disability was not manifested by symptomatology more nearly approximating that required for a 100 percent rating under Diagnostic Code 6602. Although the Veteran was often unable to undergo PFTs with accurate FEV-1/FVC findings because of abdominal complaints caused by his hernia surgeries, at no time were his FEV-1 findings indicative of less than 40 percent predicted. Additionally, in his most recent April 2012 VA examination report, the examiner indicated that the PFT findings shown during his June 2009 VA examination were probably the most accurate testing obtained during this period. Those findings of FEV-1 of 42 percent predicted and FEV-1/FVC of 77 percent predicted, do not approximate the criteria required for the next higher 100 percent rating. The record contains no evidence that during any portion of the rating period on appeal, the Veteran's asthma disability was manifested by findings of a FEV-1 of less than 40 percent of predicted value or a FEV-1/FVC of less than 40 percent of predicted value. Moreover, the Board finds that the Veteran's asthma disability symptomatology does not more nearly approximate the non-PFT criteria required for the next higher rating. The treatment records in evidence do not indicate that the Veteran's asthma disability showed more than one attack per week with episodes of respiratory failure or required daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. At no time during this rating period was there evidence of the use of systemic corticosteroids (oral or parenteral) for his bronchial asthma. Additionally, although the Veteran testified that he thought he had periodic episodes of respiratory failure because he needed to use his rescue inhaler, there is no evidence of record which indicates that he actually had attacks of respiratory failure. To the contrary, in VA examinations of April 2008 and June 2009, the medical evidence of record specifically indicated that there were no episodes of respiratory failure. Therefore the Veteran's asthma disability symptomatology does not more nearly approximate the non-PFT criteria required for the next higher 100 percent rating under Diagnostic Code 6602. The Board has considered the Veteran's statements that his bronchial asthma disability is worse. He asserted, in essence, that he warranted a total rating for this disability. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran has not been shown to possess the competence to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's bronchial asthma disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the Veteran's bronchial asthma disability is evaluated. The Board has also considered whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. Although the applicable criteria provide for higher ratings, the Board fully explained why a higher rating was not warranted. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's bronchial asthma disability includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis for bronchial asthma is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran is unemployed and states he is unable to work due to his service-connected bronchial asthma. (See VA Form 21-8940, claim for a total rating) The Social Security examiner who examined the Veteran in February 2009 in connection with his Social Security disability claim, indicated, in pertinent part, that the Veteran was unable to work due to his nonservice-connected abdominal pain. By rating decision of July 2009, entitlement to TDIU was denied by VA. Notification of the denial was provided by letter of August 2009. The Veteran did not appeal that denial and the claim became final. Since there is no evidence of record that the Veteran's bronchial asthma disability has worsened warranting further development of a TDIU claim, and the Veteran's July 2009 rating decision denying TDIU is final, the Rice case is not for application. Based on the foregoing, the Veteran does not warrant any rating higher than his currently rated 60 percent evaluation for bronchial asthma, and therefore, the claim for an increased rating for bronchial asthma is denied. 1151 Compensation Claim The Veteran asserts that he had prodromal, if not actual, active, symptoms of appendicitis dating back as early as 2002, and that VA was at fault for not recognizing these symptoms as appendicitis and timely treating him for it. He contends that but for a timely detection, diagnosis, and treatment of appendicitis in its early stages during VA treatment in 2002 and/or in 2005, his appendix would not have progressively worsened and ruptured in June 2006, causing internal infection that necessitated abdominal surgery to remove the appendix and repair an abdominal hernia, as well as several subsequent abdominal surgeries to re-address the prior hernia as well as treat the internal infection from the ruptured appendix and associated damage to his viscera and abdominal wall and cavity. According to the Veteran's contentions, he first reported complaints of abdominal pain while receiving treatment at the VA medical facility in Hudson Valley, New York, in 2002, which were not then recognized as appendicitis. He states that he has a congenital defect - which he called "malrotation" - in which his internal organs are not in their normal anatomical locations, and that because of this, his reported abdominal pain was not recognized as being related to his appendix. However, he believes that the treating physicians in 2002 should have been alerted that something was physically amiss with his internal organ arrangement because the "Olympus scope" used during a colonoscopy at the time was unable to be manipulated beyond the juncture of his transverse colon to view his ascending colon and cecum (where his appendix was located). There was also a June 2006 abdominal CT scan report, in which the examiner noted "It is difficult to demonstrate the exact location of the [Veteran's] cecum." The Veteran claims that had his treating physicians applied due diligence, they would have noticed his internal "malrotation" and then been able to detect the location of his appendix and determine that it was the source of his abdominal symptoms. In June 2005 the Veteran was treated for abdominal complaints. At no time was appendicitis diagnosed. Appendicitis was first diagnosed in June 2006. When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361(a)(2012). The Veteran must show that the VA treatment in question resulted in additional disability and, further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(a)-(d). VAOPGCPREC 40-97 (Dec. 31, 1997). In determining whether additional disability exists, the Veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to his condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the veteran's additional disability was an event not reasonably foreseeable - 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. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32 ). 38 C.F.R. § 3.361(d)(2). A VA opinion was rendered in November 2008. Pertinent facts indicated that in June 2005, the Veteran was treated for transient chest pain of several months. He was treated and diagnosed with angina of uncertain etiology. One year later, in June 2006, the Veteran was operated on by VA for an acute abdominal problem of 4 days duration. He was found to have a paraduodenal hernia and a ruptured appendix. He had an incisional hernia repair in April 2007 and again in May 2008. The Veteran reported that he was told by a VA doctor in 2006 that he had a "malrotation." The examiner stated that extensive review of the claims file, CAPRI, and VISTA, showed no record of a "malrotation." The examiner provided an opinion which indicated that the claimed conditions were not proximately related to or caused by carelessness, negligence, lack of proper skill, error in judgment, or similar finding of fault on the part of VA or by an event not reasonably foreseeable. The examiner indicated in his rationale that there was a time lapse of one year between treatment for chest pain and his surgery for an acute abdomen. In between that period of time, there was no record of abdominal complaints or treatment. The events of June 2006, could not have been foreseen in 2005, since those events were unrelated. Therefore, the Veteran's current state could not be related to any fault of VA. The Veteran testified at a RO hearing in June 2009. He stated that he had abdominal pain in the upper left quadrant of his abdomen. He was unable to recall the diagnosis and his representative refreshed his memory that the diagnosis at that time was angina. He testified that he had been told in 2006, that as a result of a birth defect, he had a malrotation and it was his contention that someone at VA should have found out during his treatment that his appendix was located in the wrong place. He testified that no physician had indicated to him or provided an opinion that he had ever been misdiagnosed or that VA was negligent in any way. He testified that he could not understand why VA could not ascertain that his appendix was in the wrong location. He also stated that all of his medical treatment was via VA. He also stated that he did not believe there was any improper care on the part of VA as far as caring for his resultant infection from his ruptured appendix. The Veteran testified at a Travel Board hearing in August 2011 before the undersigned VLJ. He related that in 2002, he had an episode of abdominal pain on the left side of his rib cage. A colonoscopy performed at that time indicated he had no appendiceal opening and it was the Veteran's opinion that this was a red flag and someone should have caught his "malrotation" and no one did. Because he had polyps removed, he stated that he had another colonoscopy a year later. A CAT scan performed at that time showed non specific bowel gas patterns which he thought should have been another clue, but no one found anything at that time. He also testified that in 2005, he complained of pain on the left side of his abdomen and again, nothing was found. A CAT scan and treadmill test were performed and nothing was related to appendicitis, only a birth defect of "malrotation." At that time, according to the Veteran's testimony, angina of unknown etiology was diagnosed. He further testified that in 2006, his appendix ruptured. He believed that this condition should have been detected in 2002, 2003, or 2005. The rupture of his appendix caused an abdominal hernia and peritonitis. He further testified that because his appendix was not in the right location, this should have been identified in 2005. He stated that his physician told him that his colon was in the correct location. He also testified that no medical provider told him that this should have been foreseen, everything that he had seen regarding his condition had been located by him on the internet. Pursuant to the Board's March 2012 remand, an April 2012 medical opinion was rendered related to the Veteran's 1151 claim. The examiner indicated that it was less likely as not that the absence of a finding of a clinical diagnosis of appendicitis or a medical condition related to the Veteran's appendix while he was undergoing treatment in 2002 for abdominal pain represented carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the treating physicians involved for failure to timely detect, diagnose, and treat the diseased appendix. The examiner's rationale was that there was no objective evidence of a diseased appendix in 2002. In 2002, neither the CT scan, nor the MRI, nor the colonoscopy showed findings that were concerning for a serious or chronic intra-abdominal condition/process to include a diseased appendix. Even with the appendix in an unusual or malrotated position, if there had been the beginning of appendiceal inflammation, the testing should have noted this-i.e. the test that he had done should have been abnormal. It may not have been known until surgical exploration that the test abnormality was actually an appendix condition, but there would have been evidence of abnormality leading to surgery. The MRI finding of a "small amount of fluid which appears to be outside the liver adjacent to the right lobe of questionable significance" was not the area where the Veteran stated his appendix was and certainly was not of a severity that would have led any surgeon to have pursued an invasive operative procedure. The colonoscopic finding of not being able to see the appendiceal opening, according to the examiner, was common, and not an indication of pathology or impending pathology. Per literature regarding "chronic appendicitis:" "A small number of patients report episodic bouts of right lower abdominal pain in the absence of an acute febrile illness. Some are found to have appendicoliths on CT scansor, sonographic evidence of an enlarged appendiceal diameter; most of these will have surgical and pathologic evidence of chronic inflammation of the appendix and relief of symptoms after appendectomy. These findings support the concept that appendicitis represents a spectrum of inflammatory changes that may, in rare cases, wax and wane." According to the examiner, this was to say that it would be extraordinarily unlikely (most likely impossible) for an individual to have a smoldering appendicitis for 4 years. The examiner also opined that it was less likely as not that VA failed to exercise the degree of care that would be expected of a reasonable health care provider when the examiner treated the Veteran for abdominal pain complaints in 2002. According to the examiner, the Veteran had the standard of care for evaluation of abdominal pain-history, physical examination, laboratory evaluation, imaging, endoscopy, and follow-up. In 2003, by record, the pain had resolved. Further, the examiner opined that it was less likely as not that the absence of a finding of a clinical diagnosis of appendicitis or a medical condition relating to the Veteran's appendix while he was undergoing VA treatment in June 2005 for abdominal pain represented carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault on the part of the treating physician involved for failure to timely detect, diagnose, and treat the diseased appendix. The examiner's rationale for this finding was that there was no objective evidence of a diseased appendix in 2005. The pain, according to medical records, was described in 2005, as "pre-cordial." Generally, this term was used for pain in the anterior thorax, considered to be consistent with angina. Even with a malrotated colon, this pain would be distinguishable by history and indeed the history reported was not consistent with a gastrointestinal source. While not completely typical of angina either, the Veteran had some symptoms in the arms, left greater than right, which according to the examiner, would have made the astute provider concerned about a cardiac condition. The GI review of systems and physical examination were completely normal, making the likelihood of a GI condition extremely unlikely. According to the examiner, it would be extremely unlikely that the Veteran would have had appendicitis in June 2005 and not have had a diagnosis until one year later. Finally, the VA examiner opined that it was less likely as not that VA failed to exercise the degree of care that would be expected of a reasonable health care provider when it treated the Veteran for abdominal pain complaints in June 2005. Medical records found that the provider chose the appropriate course of action dictated by the symptoms and physical findings with which the Veteran presented. The Veteran was seen by the same provider three months later with no chest or abdominal complaints. Following a review of the evidence in this case, and the applicable laws and regulations, it is the Board's conclusion that the preponderance of the evidence is against the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for a ruptured appendix, abdominal hernia, scars, and abdominal deformity. The April 2012 medical opinion has clearly indicated that there was no evidence of a diseased appendix in 2002, that appendicitis could not have smoldered for 4 years, there was no evidence of a diseased appendix in 2005, one year before his appendix ruptured, and finally, the degree of care expected by a reasonable health care provider was exercised in 2002 and 2005 when the Veteran was treated for abdominal pain. Under the circumstances, the Board concludes that this professional opinion, which addressed all of the contentions of the Veteran, constituted the most probative (persuasive) evidence of record. The VA opinion noted above supports the Board's conclusion. There are no contradicting medical opinions of record. The Veteran has not presented or identified any medical evidence refuting the VA examiner's unfavorable conclusions. He is certainly competent, even as a layman, to comment on things within the perception of his five senses, such as a painful abdomen. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Nonetheless, the Veteran is not competent to opine on questions of causation, negligence, or reasonable forseeability of medical risks. These determinations are based upon findings that are medically complex in nature and simply not readily amenable to lay comment. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease that necessarily involved complex medical issues). Moreover, the Veteran indicated in his August 2011 Travel Board hearing testimony, that no doctor had told him that his "malrotated" appendix could or should have been discovered by VA, and if it had, it would have prevented his ruptured appendix which caused his appendicitis and any residuals thereof. He stated that all of his contention and statements were based on his review and study of the internet. The Veteran's lay statements are clearly outweighed by the April 2012 VA professional opinion. That opinion included a review of the examination of the Veteran, a review of the record, medical literature to substantiate the examiner's findings, and provided a rationale for the findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Clearly, the medical opinion of a physician outweighs that of the Veteran. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (an evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached). Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C.A. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An increased rating for bronchial asthma is denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for a ruptured appendix, abdominal hernia, scars, and abdominal deformity is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs