Citation Nr: 1317900 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-12 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for postoperative infection of ventral hernia with mesh placement, for accrued benefit purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. The Veteran died in June 2007; the current appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that denied service connection for the cause of the Veteran's death. A subsequent rating decision in April 2008 recharacterized the issue as a claim for entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1151. In October 2011 the RO issued a rating decision that granted service connection for the cause of the Veteran's death as due to coronary artery disease presumptively associated with herbicide exposure to service. Thus, the claim for DIC has been granted in full and is no longer on appeal. The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for postoperative infection of ventral hernia with mesh placement, for accrued benefit purposes, was continued on appeal. In her substantive appeal, received in March 2009, the appellant requested a hearing before a Member of the Board. Hearings were duly scheduled at the RO ("Travel Board" hearings) in March 2010, July 2010 and October 2010, but on each occasion the appellant requested the hearing be postponed until after her pending appeal for cause of service connection for the cause of the Veteran's death was decided. In February 2012 the appellant notified VA in writing that she no longer wanted a hearing and asked that the file be sent to the Board for adjudication of the appeal based on the existing record. See 38 C.F.R. § 20.704(e) (2012). FINDINGS OF FACT 1. In a June 2007 rating action, the RO denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for postoperative infection of ventral hernia with mesh. 2. The Veteran died in June 2007 on the same day the rating decision denying compensation under 38 U.S.C.A. § 1151 was issued. 3. No other claims for VA benefits were pending at the time of the Veteran's death, nor was the Veteran entitled to unpaid benefits under an existing rating or decision. 4. The Veteran had VA surgery on January 12, 2004, for midline incisional hernia repair; he subsequently developed an infection of the surgical mesh that resulted in a need for subsequent surgeries and symptoms of pain and abdominal swelling. 5. Evidence of record prior to the Veteran's death fails to show the postoperative infection of surgical mesh was due to fault on the part of VA in furnishing the surgical treatment, or to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for postoperative infection of ventral hernia with mesh placement, for accrued benefit purposes, are not met. 38 U.S.C.A. §§ 1151, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the appellant's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). In this case, full VCAA notice regarding entitlement to compensation under 38 U.S.C.A. § 1151 was provided to the Veteran in March 2007, and he had ample opportunity to respond prior to issuance of the June 2007 rating decision. In any event, the appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. Because entitlement to accrued benefits is based on the evidence of record at the time of the Veteran's death, remand for additional medical opinion is not required. The Veteran's VA and private treatment records are associated with the claims file. The appellant has not asserted there is any additional existing evidence relevant to the claim that is not currently of record, and the Board is also unaware of any such outstanding evidence. The Board has considered whether Quality Assurance (QA) records relating to the Veteran's surgery in January 2004 should be obtained in support of the claim for compensation under 38 U.S.C.A. § 1151. However, it is VA's policy to destroy quality assurance records after three years unless needed for research or legal purposes. See Norvell v. Peake, 22 Vet. App. 194, 200 (2008). Accordingly, there is no reasonable possibility that QA records, if indeed they were ever produced, would still be retained. VA has no duty to seek to obtain that which does not exist. Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). In sum, based on a review of the claims file, the Board finds there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appeal. Applicable Legal Principles Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal criteria: accrued benefits An individual entitled to accrued benefits may be paid periodic monetary benefits to which a payee was entitled at death under existing ratings or based on evidence in the file at the date of death. 38 U.S.C.A. § 5121(a) (West Supp. 2011); 38 C.F.R. § 3.1000 (2012). In order to support a claim for accrued benefits, the Veteran or other payee must have had a claim pending at the time of his death for such benefits, or else be entitled to them under an existing rating or decision. 38 U.S.C.A. § 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). "Evidence in the file at the date of death" means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4). "Claim for VA benefits pending on the date of death" means a claim filed with VA that had not been finally adjudicated by VA on or before the date of death. Such a claim includes a deceased beneficiary's claim to reopen a finally-disallowed claim based on new and material evidence or a deceased beneficiary's claim for clear and unmistakable error in a prior rating decision. However, any new and material evidence must have been in VA's possession on or before the date of the beneficiary's death. 38 C.F.R. § 3.1000(d)(5). Legal criteria: entitlement to compensation under 38 U.S.C.A. § 1151 A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuation or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim 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 whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Evidence and Analysis The Veteran died on June [redacted], 2007, the same day that the RO issued a rating decision denying his claim for compensation under 38 U.S.C.A. § 1151 for postoperative infection of ventral hernia with mesh placement. His death certificate shows the cause of death as sepsis with other significant condition contributing to death being end stage renal disease. Because the Veteran died during the one-year appeal period for the June [redacted], 2007 rating decision, the Board will consider whether the evidence of record at the time of his death establishes entitlement to the claim for accrued benefits purposes. Review of the file does not show that any other claims for VA benefits were pending at the time of the Veteran's death, or that the Veteran was entitled to unpaid benefits under an existing rating or decision. The Veteran had VA surgery on January 12, 2004, for midline incisional hernia repair. Prior to surgery he was advised of the risks associated with surgery, including but not limited to pain, bleeding, infection, death, adjacent organ injury, recurrence of hernia and need for future operations. The Veteran then underwent laparoscopic surgery to repair two large midline hernias and one smaller hernia. A dual mesh was laid to cover the hernias. The Veteran appeared to tolerate the procedure well and was discharged home on January 14 without noted complications. Two weeks later the Veteran presented complaining of abdominal pain, nausea and vomiting. He was admitted to the VA Medical Center (VAMC) in Columbia for treatment of suspected peritonitis. On January 27, 2004, the Veteran underwent surgery to remove infected mesh material, with another surgery on February 19 to change the wound vacuum. He appeared to tolerate the surgery well, although recovery was confounded by symptoms associated with the nonservice-connected renal disease. He was treated for several weeks with a wound vacuum to enhance and encourage tissue growth. He was discharged to home health care on February 23, 2004. The Veteran presented to the VA outpatient clinic on March 10, 2004, for follow-up. The Veteran was noted to have an occlusive covering with an attached portable suction device. Otherwise the Veteran was doing well, with no chest pain, dyspnea, abdominal pain, nausea/vomiting/ diarrhea/constipation (N/V/D/C), melena, hematochezia or other issues. Clinical examination was grossly normal. The clinical impression was open wound and polycystic kidney disease (PCKD). During a VA mental health clinic (MHC) initial assessment on March 11, 2004, the Veteran reported having developed depression after abdominal surgery with evisceration and infection. He reported having been hospitalized for one month, during which he lost much of his physical strength. The Veteran stated he would need two more surgeries to apply skin graft and reduce the hernia; he was currently homebound with a suction drain to the abdomen. Although the Veteran had a history of combat he had no symptoms of posttraumatic stress disorder (PTSD) until the abdominal wound and associated pain. The psychiatric assessment in Axis I (clinical disorders) was mood disorder related to medical problems and PTSD. The assessment in Axis III (general medical conditions) was polycystic kidneys with chronic renal insufficiency and status post abdominal surgery with complications. On April 9, 2004, the Veteran underwent a split-thickness skin graft to the anterior abdominal wall. The donor site looked good through the entire period of inpatient care, with no sign of infection. There were no evidence complications, and the Veteran was discharged on April 14, 2004. The discharge diagnosis was chronic open abdominal wound and end-stage renal disease. The Veteran had a VA general medical examination in May 2004 in which the examiner noted surgical history of abdominal wall herniorrhaphy and removal of infected mesh from the abdominal wall herniorrhaphy, as well as skin graft donated from the left thigh. The Veteran's current medical problems included polycystic kidney disease, renal failure, hypertension, gouty arthritis and gastroesophageal reflux disease (GERD). The Veteran reported having undergone colon resection for colon cancer; after that he had surgery for abdominal wall hernia, which became infected and required another operation for removal of the mesh. The Veteran stated the incision was left open for approximately four months and allowed to heal in. He subsequently underwent a skin graft to the abdomen from a donor site on the left thigh, which had almost completely healed in. Physical examination of the abdomen showed the Veteran to have a very large ventral hernia; the Veteran was wearing a large gauze bandage over the skin graft. The examiner diagnosed colon resection and complications of abdominal wall herniorrhaphy. The examiner stated this was the Veteran's chief problems and the reason the Veteran was no longer able to work. The examiner also diagnosed renal failure secondary to family disease, hypertension secondary to renal failure and GERD. The Veteran presented to the VA MHC on June 1, 2004, expressing extreme anxiety about his upcoming third surgery. He reported a sense of impending doom and expressed a fear that the wound would not heal or that he would not make it out of surgery. He stated he felt trapped by circumstances, including inability to work or to get disability benefits from either VA or Social Security Disability (SSD). The clinical diagnosis was PTSD with depression. On June 16, 2004, the Veteran presented to the VA MHC with report of increased anxiety regarding the upcoming fourth surgery to fix the same problem. A December 2004 VA MHC note states the Veteran expressed concern about upcoming dialysis for his kidney disease; the ongoing hernia problem was not mentioned. From this time forward, MHC notes including Axis III prominently refer to the Veteran's concern about kidney disease, while the hernia is mentioned only infrequently. An August 2004 letter from Dr. William R. Bixenman, a private nephrologist, confirms that the Veteran's polycystic kidney disease and resultant renal insufficiency was hereditary in nature and incurable. The Veteran presented to the VA MHC in November 2005 complaining that he was still waiting for surgical closure of his abdominal wound. Until then, he was restricted in physical activity and stamina. The clinical impression was prolonged PTSD and mood disorder related to general medical condition (dialysis and abdominal wound). The Veteran had a VA aid and attendance (A&A) examination in March 2006 during which he asserted having problems with balance and standing and with limited motion of the trunk, all due to the large ventral hernia. The examiner noted current medical problems of kidney failure, prolonged PTSD, mood disorder due to general medical condition, hypertension, GERD, depression, incisional hernia, chronic renal insufficiency, polycystic kidney disease and benign neoplasm of the large bowel. A rating decision in December 2006 granted service connection for PTSD, and a rating decision in November 2006 granted individual unemployability and Dependents' Educational Assistance as due to PTSD. In his instant claim for compensation under 38 U.S.C.A. § 1151, received in January 2007, the Veteran asserted having had continuous abdominal problems since corrective surgery that had been done to correct the infection. He stated that he had been granted fee basis eligibility to consult a private physician to perform further corrective surgery within the next few months. In support of the Veteran's claim the RO sent a request to Dorn VAMC in March 2007 requesting copies of medical records, surgical records, hospital clinical records, nurses' notes, VA Form 10-2633 (Report of Special Incident Involving a Beneficiary) or any other documentation of patient injury. Dorn VAMC responded in April 2007 that computerized records were already associated with VA electronic records; there were no additional handwritten notes in the Veteran's record. The Veteran submitted a number of photographs dated April 11, 2007, that show a white male, identified as the Veteran, displaying a swollen abdomen with an evident prominent incisional ventral hernia. The file contains treatment records from Carolinas Medical Center, a non-VA provider, that were received in August 2008. The records address treatment afforded to the Veteran during the period January 29, 2007, through June 28, 2007. These treatment records were not actually or presumptively before VA prior to the Veteran's death and are accordingly not for consideration in a claim for accrued benefits. Similarly, the file contains a private autopsy report dated June [redacted], 2007 (one day after the Veteran's death). The report is not for consideration in a claim for accrued benefits. Review of the evidence of record at the time of the Veteran's death that relates to his ventral hernia shows that the Veteran had VA surgery in January 2004 with a resultant infected mesh implant; the infected mesh was removed in January 2004 but thereafter the Veteran had recurrent complaints of abdominal pain and swelling. Thus, additional disability since the initial surgery in January 2004 is shown. However, compensation under 38 U.S.C.A. § 1151 requires a showing that the additional disability is due to some fault on the part of VA. The evidence of record prior to the Veteran's death contains no competent suggestion of such fault. Infection was a recognized and acknowledged risk of the initial surgery, as was the possibility of future surgeries; thus, there is no indication of failure of informed consent or additional disability due to a cause not reasonably foreseeable. By submitting a claim for compensation under 38 U.S.C.A. § 1151 the Veteran demonstrated his personal belief that the operative infection, which arguably led to his subsequent corrective surgeries and symptoms of pain and swelling, were due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical and/or post-surgical treatment. However, the question of whether a surgeon or other healthcare provider failed to exercise the degree of care that would be expected of a reasonable healthcare provider is a complex medical question that is not within the competence of a layperson to determine. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation; see Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, the evidence that was of record prior to the Veteran's death does not contain any competent medical opinion asserting fault by VA in the medical care provided to the Veteran. Based on the evidence and analysis above the Board finds the Veteran did not have an additional disability manifested by postoperative infection of ventral hernia with mesh placement that was due to fault on the part of VA in furnishing the surgical treatment or to an event not reasonably foreseeable. Accordingly, the criteria for entitlement to compensation under 38 U.S.C.A. § 1151 on an accrued basis are not met, and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for postoperative infection of ventral hernia with mesh placement, for accrued benefit purposes, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs