Citation Nr: 1329692 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-38 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an incisional hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In January 2013, the Veteran testified before the undersigned at a video-conference hearing at the RO. FINDING OF FACT The Veteran has additional hernia disability as a result of VA medical treatment administered in March 2003, but the proximate cause of the disability was not 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 an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an incisional hernia have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: (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), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A VCAA letter was sent in May 2007 which indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence. The Veteran has also been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims ("the Court") held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the basis of the prior determination or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran met the criteria for his claim and sought to identify evidence not currently associated with the claim. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Regarding the duty to assist, VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. At his hearing, the Veteran identified potential records that might support his claim. See pages 16-19 of the hearing transcript. However, no further records were submitted even though the Veteran indicated that he would submit the records. The Veteran indicated that there might be additional records from a private physician, but stated that the physician was no longer located at his prior office, so he might not be able to get the records. He also indicated that his house burned down so no records could be retrieved from there. In any event, there are no additional records to be obtained by VA. Although his representative indicated that there were no records pertaining to the 2005 surgery, that is inaccurate. There are private records from the surgery in the claims file and referred to below. These are not VA records as the representative alludes. With regard to any additional records, all available records are apparently contained in the claims file as the medical release for the private records pertained to all records from that facility. With regard to any further records which the Veteran indicated he would obtain, he has not produced them. The Court has held that VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence, as in this case when he stated he would furnish the evidence. Further, the Board notes that a VA medical expert opinion was also obtained after the hearing. The records overall satisfy 38 C.F.R. § 3.326. The VA opinion obtained in this case is adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims file. The opinion considered all of the pertinent evidence of record and statements of the appellant, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Compensation under 38 U.S.C.A. § 1151 Compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. In addition, the proximate cause of the disability or death must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. Effective September 2, 2004, 38 C.F.R. § 3.361 was promulgated for claims filed as of October 1, 1997. Prior to that time, 38 C.F.R. § 3.358 is to be applied. In this case, the veteran's claim was received after October 1, 1997. Thus, 38 C.F.R. § 3.361 is for application. 38 C.F.R. § 3.361(b) states that to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program 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(c) states that claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a 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. 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 continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. 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(d) states that 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. 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused a veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, a veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability or death 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 § 17.32 of this chapter. To establish that the provision of training and rehabilitation services or a CWT program proximately caused a veteran's additional disability or death, it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT program provided or authorized by VA proximately caused the disability or death. The veteran must have been participating in such training, services, or CWT program provided or authorized by VA as part of an approved rehabilitation program under 38 U.S.C. chapter 31 or as part of a CWT program under 38 U.S.C.§ 1718. It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized. 38 C.F.R. § 3.361(e) provides for Department employees and facilities. A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e) explains activities that are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. The following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a): (1) hospital care or medical services furnished under a contract made under 38 U.S.C. 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction 38 C.F.R. § 3.361(g) provides for benefits which are payable under 38 U.S.C. § 1151 for a veteran's death. Pursuant to 38 U.S.C. § 1151, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed.Cir.2010); see also Hyatte v. Shinseki 2010 WL 5230879, 2 (Vet. App.) (Vet.App.,2010) The record reflects that the Veteran underwent VA open cholecystectomy surgery in March 2003 at a VA Medical Center. Following that surgery, he developed a ventral hernia in November 2003. In February 2005, he underwent surgery to repair the hernia, at a private facility, the Presbyterian multi-specialty clinic in Espanola, New Mexico. The Veteran still suffers from the ventral hernia and claims that the hernia resulted from the initial March 2003 cholecystectomy surgery and/or the care provided to him by VA in conjunction with the initial surgery. The Veteran was provided with a VA examination in relation to his claim in April 2008. After diagnosing a recurrent incisional hernia, the examiner commented that an incisional or ventral hernia may occur in the area of any prior surgical incision and is caused by thinning or stretching of scar tissue that forms after surgery. The hernia develops as the result of disruption along or adjacent to the area of the abdominal wall suturing, often subsequent to tension placed on the tissue or other inhibition to adequate healing (infection, poor nutrition, obesity or metabolic disease). This weakened scar tissue then creates a weakness in the abdominal wall. Because the abdominal wall is weak, the hernia occurs during abdominal strain. The examiner noted that the Veteran developed the incisional hernia following gallbladder surgery and that an attempt to repair the hernia resulted in the recurrent incisional hernia. He then found that it was more likely than not that the Veteran's recurrent incisional hernia is due to failure of the February 2005 surgery to repair it. That is, this VA examiner indicated that the recurrent hernia was due to private facility treatment. However, the April 2008 VA examiner did not provide a specific opinion concerning whether the incisional hernia was caused by any carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault by VA in performing the initial March 2003 surgery and/or providing the medical care associated with the surgery. The examiner also did not provide a specific opinion concerning the whether the cause of the Veteran's incisional hernia was an event that was not reasonably foreseeable. Consequently, the Board referred this case to a VA medical expert for a medical opinion. The VA medical expert was requested to address the following inquires: 1) Did the Veteran's ventral hernia (diagnosed in November 2003) manifest as a result of the surgery performed by VA on March 4, 2003, and/or the follow-up treatment provided by VA? 2) If so, was it was caused by carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of VA? 3) Also, was the ventral hernia a reasonably foreseeable result of the March 4, 2003 surgery; that is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the treatment at issue? In June 2013, the opinion was provided. The record was reviewed. With regard to the first question, the medical expert stated that the Veteran's ventral hernia was a direct result of the gallbladder surgery performed by VA on March 4, 2003. With regard to the second question, the medical expert stated that the causes of hernia at incisional sites and varied and often mulitfactorial. There can be either technical failures (the surgeon using the wrong suture or the wrong suture or tying technique, sewing the wrong layers together, or making the sutures too tight or too loose), or problems from the patient factors that lead to either poor healing on increased stresses on the suture line. The medical expert indicated that the Veteran did not have any known complication of the procedure (such as bleeding or would infection or postoperative bowel obstruction) and the information of record did not indicate the initial cause of the incisional hernia. The examiner did not have the private physician's operative dictation. The Board notes that the medical release provided for all private records to be furnished so all available records are in the record and, as previously noted, the physician who performed the surgery is no longer available for contact. However, the medical expert surmised that there was a technical error in this case in the use of only a single suture to close the posterior fascia and the anterior fascia which may have led to the hernia. He noted that using two sutures, started at either end of the incision for each layer closed, ensured that the proper layers were identified at each corner of the incision whereas using a single suture often leaves the far end of the suture "tied to nothing" because the incision is tightly closed as that last throw os suture is places and visualization is impaired deep at the far corner. With regard to the third question, the medical expert stated that a hernia following incisions into the abdomen is a known risk of any surgical procedure, including laparoscopic surgery. He reported that there was no readily identifiable cause to suspect a higher than normal risk for the hernia, so he considered it a reasonably foreseeable result of the surgery. The medical expert concluded that he could not find any fault on the part of VA in this case. The original surgery to remove the gallbladder was done without incidence. There was an incisional (ventral) hernia as a result, noted in November 2003. The Veteran was seen by a VA surgeon and counseled about surgical repair. From the notes, the medical expert related that it appeared that the Veteran decided against repair, but the claim suggested that the surgeon was not willing to do the surgery repair which the medical expert found hard to believe, given that the Veteran was set up with an Anesthesia Screening appointment in anticipation of hernia repair, on February 5, 2004. At any rate, it was documented at the Surgery Clinical appointment on February 23, 2004, that the Veteran opted against repair. The medical expert also addressed the VA opinion, noting that the examiner rambled on about hernia development and provided a vague and convoluted explanation. Nevertheless, the medical expert concurred that the ultimate finding that the recurrent incisional hernia was due to a failure of the non-VA surgeon to adequately and effective repair the original hernia and that VA had not part in this or fault in this. The medical expert indicated that under the best of circumstances, failure of a ventral hernia repair (recurrence) is estimated in about 20 percent in the surgical literature. Also, since there are a myriad of repair techniques, as well as available meshes and graft materials used for repair, and that regardless of technique/materials, the recurrent rate is still about 20 percent. He stated that there was as of yet no clearly superior standard of incisional surgery repair, even in 2013. VA law and regulation require that the evidence must show that the additional disability is the result of VA hospital care, medical or surgical treatment and that the proximate cause of the additional disability must be either 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 an event not reasonably foreseeable. It is not contended nor shown that the Veteran was furnished hospital or medical treatment without his consent. The Veteran indicated that he did not understand the type of surgery. However, the surgical report clearly states that the Veteran consented to the surgery and understood the risks. The Veteran has additional disability as a result of VA medical treatment administered in March 2003 as he has a ventral hernia due to that surgery. However, the VA medical expert determined that the proximate cause of the disability was not 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. Also, the additional disability was not due to an event not reasonably foreseeable according to the medical expert in the June 2013 opinion. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the VA medical expert was aware of the Veteran's medical history and cited to pertinent history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The VA medical expert explained that a ventral hernia was a foreseeable result of the surgery and its occurrence was not due to negligence or carelessness on the part of VA. In fact, the VA medical expert explained that the VA surgery was done without incident, the hernia was a reasonably expected result, and the non-VA surgical repair resulted in the recurrent incisional hernia because this physician did not effectively repair the original hernia. The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed conditions. Therefore, the VA medical expert opinion is more probative regarding the complex medical questions that have been presented in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In order to establish eligibility under 38 U.S.C.A. § 1151, the Veteran's March 2003 surgery/medical care by VA must have been a factor and the other listed criteria must be met. That is not the case here. The Veteran has additional hernia disability as a result of VA medical treatment administered in March 2003. However, the most probative competent evidence establishes that the proximate cause of the disability was not 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 an event not reasonably foreseeable. Accordingly, the criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an incisional hernia have not been met. In reaching this decision, the Board has considered the doctrine of doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for an incisional hernia is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs