Citation Nr: 1336186 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-32 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to VA compensation under the provisions of 38 U.S.C.A. § 1151 for an abdominal defect or other post-surgical disorder, claimed as a residual of coronary artery bypass graft (CABG), performed at a VA medical center (VAMC) in May 1995. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to May 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before a RO Decision Review Officer (DRO) to present hearing testimony in July 2006. In March 2008, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). Transcripts of both hearings are of record and associated with the claims folder. In October 2008, the Board determined that new and material evidence had been received to reopen the claim and remanded the matter for a medical examination and opinion. The examination was conducted and a medical opinion received. In March 2010, the Board reviewed the claim and denied the appeal. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court). In a January 2012 Memorandum Decision, the Court determined that the medical opinion did not comply with the Board's remand, vacated the Board's 2008 decision, and remanded the matter to the Board for further development. The Board remanded the Veteran's claim for further developement in August 2012 and May 2013, for further development. This claim is now ready for appellate review. FINDING OF FACT The competent and credible evidence of record does not establish that the Veteran has an abdominal defect or other post-surgical residual, claimed as ventral hernia, as a result of carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable following a CABG performed at a VAMC in May 1995. CONCLUSION OF LAW The criteria have not been met for an award of VA compensation under the provisions of 38 U.S.C.A. § 1151 for an abdominal defect or other post surgical residual, claimed as ventral hernia, as a residual of CABG performed at a VAMC in May 1995. 38 U.S.C.A. §§ 1151, 5103, 5103A (West 2002 and Supp 2012); 38 C.F.R. §§ 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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) (2013). 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 that fully addressed all notice elements. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO effectively satisfied the notice requirements with respect to the issue on appeal. 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. 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. 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 (2013). 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 this claim. 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 2009, September 2012, and June 2013. The VA examiners reviewed the claims folder in connection with the claim. The August 2009 examination provided a thorough examination of the Veteran. Pursuant to the January 2012 Court remand, the Court determined that the August 2009 medical opinion did not apply the appropriate proximate cause standard and an additional opinion was ordered. A September 2012 VA addendum provided a medical opinion. This opinion did not thoroughly address some inconsistencies raised in prior medical evidence of record. A June 2013 VA addendum was submitted to address the discrepancies. This opinion was supported by clear rationale. The Board finds that the VA opinion is 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 opinion concerning the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board also notes that the Veteran applied for Social Security Administration (SSA) 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 SSA disability benefits. However, in June 2013, a letter was associated with the claims folder that the Veteran's Social Security records were unavailable because they were destroyed. The Veteran was informed of the Social Security records unavailability and given an opportunity to submit to VA any copies of these records he may have in his possession. No response to that June 2013 letter from VA regarding the Social Security records has been received from the Veteran by VA. Further, the Veteran was provided an opportunity to set forth his contentions at a RO hearing in July 2006 and a March 2008 videoconference hearing before the undersigned VLJ. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO DRO or 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 was the issue "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 claim 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 claim. 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). 1151 Compensation Claim The Veteran contends, in essence, that he has an abdominal defect or other post surgical residual, claimed as ventral hernia, as a residual of CABG performed at a VAMC in May 1955. 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) (2013). 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). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of the case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). The evidence of record discloses that in May 1995, the Veteran was admitted to a VAMC with a history of coronary artery disease. He was scheduled to have an elective CABG. Prior to surgery, he signed a form consenting to the procedure. He acknowledged the risks, benefits, possibility of complications, as well as the expected results, and medical alternatives for the procedure had been explained to him. He further acknowledged that no results of the procedure had been guaranteed to him. Thereafter, he underwent a five vessel coronary artery bypass graft with grafts harvested from his lower extremities. He reportedly tolerated the procedure well and was returned to the Intensive Care Unit in stable but guarded condition. He remained stable during nine additional days of hospitalization, after which he was discharged to a contract nursing home. During follow-up treatment from June 1995 through April 1996, the Veteran developed an infection at the vein donor site in his right lower extremity. He was also treated for depression. Occasionally, he complained of soreness to his chest incision. It was noted that the chest incision had healed well. This was confirmed during an August 1995 VA examination. It was noted at that time to be well-healed, nontender, and appeared stable. The threshold question is whether the Veteran has additional disability as a result of his CABG. Although the Veteran contends that he has a ventral hernia, or an abdominal defect or other post-surgical disorder, claimed as a ventral hernia, VA and private health care providers who have examined/treated the Veteran are split on this point. In June 2002, a consultation with the VA Chest Surgery Clinic acknowledged that there was a knot underlying the Veteran's incisional scar. The consulting surgeon found it compatible with scar tissue. Subsequent CT scans and echograms were negative with the presence of a ventral hernia and during the VA examination of August 2009, the examiner could not establish the presence of ventral hernia. A ventral hernia was reported in March 2004 by K.A.M., MD, a vascular surgeon. That report was confirmed on several occasions from June 2004 through April 2007, by B.G.P., MD, a specialist in gastroenterology and hepatology, and by R.S.G., MD, a surgeon. However, even if the Veteran has a ventral hernia, or an abdominal defect or other post-surgical disorder, claimed as a ventral hernia, that does not end the inquiry. The presence of additional disability only is not sufficient. The evidence must show that the proximate cause of the disability was 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 that the development of the abdominal defect or other post-surgical disorder claimed as a ventral hernia as a residual of a CABG was not reasonably foreseeable. The August 2009 VA examination and medical opinion do not suggest that the claimed ventral hernia is not an unforeseeable residual of CABG. The examiner indicates, after an examination of the Veteran, and review of a chest CT scan, there is no evidence of a ventral hernia. He has indicated that the Veteran's calcified xiphoid may be causing some degree of discomfort, but he did not believe that resection would alter this constellation of symptoms. The examiner found no deviation from the standard of care at the time of the procedure performed in 1995 and stated that it appeared that the Veteran had experienced a satisfactory cardiac result from the procedure. He also related that while the calcification of the xiphoid process might possibly be related to the surgery, that too, did not deviate from the standard of care. Resection of the calcification of the xiphoid process would very likely, according to the VA examiner, result in a ventral fascial defect or hernia. In January 2012, the Court determined that the Board relied on the August 2009 VA medical opinion. That opinion, according to the Court, used an improper proximate cause standard. Additionally, the examiner did not provide a rationale for his conclusion stated. Finally, the Court stated that the Board's discussion of foreseeability was insufficient. As a result, the Court vacated the Board's March 2010 denial and remanded the claim for further development. Pursuant to the Court's January 2012 remand, VA provided a September 2012 opinion. The VA examiner stated that the claims folder and medical records had been reviewed. According to the examiner, there was no evidence of a ventral hernia. The Veteran had multiple abdominal and chest CT scans which had not documented any ventral hernia. He had CT scans in December 2004 and October 2006 which showed the Veteran had small umbilical hernias and the CT scans of October 2009 and April 2012 also revealed no hernia. He was examined by general surgery and no hernia was found but did show diastasis recti. The most up-to-date latest and comprehensive review of the medical literature etiology of diastasis recti is that the fascia becomes attenuated (akin to being stretched), most often due to body habitus or pregnancy. Diastasis recti does not represent an abdominal wall hernia; there is no fascial defect and therefore, no risk of incarceration or strangulation. Patients with diastasis recti typically have two profiles: middle-aged and older men with central obesity or small, fit women who have carried a large fetus or twins to term. For the overweight patient, gradual weight gain causes the rectus muscles to increasingly separate above the umbilicus. The examiner stated that the Veteran was morbidly obese, and had a BMI of greater than 37, an inherent risk factor for the diastasis recti. His CABG had no etiological link to his current abdominal problems. The up-to-date medical literature on line showed umbilical hernias are associated with increased intraabdominal pressure due to obesity, pregnancy, or ascites. The Veteran's obesity, according to the examiner, was the cause of his umbilical hernia, and there is no evidence that he had any abdominal defect. According to the VA examiner, there is no medical evidence that the Veteran has a ventral hernia and there is no medical evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the May 1995 surgical treatment. Pursuant to the Board's May 2013 remand, a June 2013 VA addendum was provided in connection with the September 2012 VA opinion. The May 2013 remand indicated that it remained unclear why various records in the file reflected a diagnosis of ventral hernia, while the August 2009 and September 2012 VA examiners did not believe the Veteran had a ventral hernia, The May 2013 Board remand asked that these discrepancies be addressed. The June 2013 VA addendum indicated, in pertinent part, that the Veteran was obese and had a BMI of 34. His abdominal examination showed a pendulous abdomen. According to the examiner, it is very hard diagnose any abdominal pathology in patients who have abdominal obesity and pendulous abdomen. The examiner also stated that he saw no evidence of any abdominal studies like a CT scan or an ultrasound performed by the private physicians that showed the presence of ventral hernia. The diagnoses provided by the private physicians were made just by physical examination, which in an obese person with a pendulous abdomen is very hard to do. In contrast, multiple studies were done at the VA hospital, starting from 2004, which have not demonstrated evidence of any ventral or incisional hernia. According to the examiner, the Veteran does have evidence of umbilical hernia, small lipoma, and rectus diastasis. According to the VA examiner, there is no evidence that the Veteran's abdominal defect or other post-surgical residual, to include diastasis recti, calcification of the xiphoid process, and umbilical hernia, are due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the May 1995 surgical treatment. There was nothing that could be done by the doctors in any way that the Veteran's abdominal diastasis recti, calcification of xiphoid process, and umbilical hernia, could have been avoided. There is no evidence in the Veteran's VA medical records that he had postoperative wound infection or wound dehiscence which could have led to a ventral hernia. Umbilical hernias are associated with increased intra-abdominal pressure due to obesity, abdominal distension, ascites, and pregnancy. According to the examiner, the Veteran should have stopped smoking and lost weight which is the basic reason for his hernia and diastasis recti. Lipomas are collections of mature fat cells, enclosed by thin, fibrous capsules, and they can occur on any part of the body where fat cells coalesce. They are usually found superficially in the subcutaneous tissue, but can more rarely involve fascia or deeper muscular planes. These are in no way connected to his surgery. The examiner stated that the May 1995 provider of the surgical treatment did exercise the degree of care that would be expected by a reasonable health care provider. The Veteran's diastasis recti and the umbilical hernia are not residuals of his CABG. These are etiologically related to obesity. The most up-to-date latest and comprehensive review of the medical literature etiology of diastasis recti is that the fascia becomes attenuated (akin to being stretched) most often due to body habitus or pregnancy. Diastasis recti does not represent an abdominal wall hernia; there is no fascial defect and therefore, no risk of incarceration or strangulation. Patients with diastasis recti typically have two profiles: middle-aged and older men with central obesity or small, fit women who have carried a large fetus or twins to term. For the overweight patient, gradual weight gain causes the rectus muscles to increasingly separate above the umbilicus. The Veteran is morbidly obese and had an inherent risk factor for the diastasis recti and the CABG surgery had no etiological link to his current abdominal problems. Umbilical hernias are associated with increased intrabdominal pressure due to obesity, pregnancy, or ascites. The Veteran's obesity is the cause of his umbilical hernia and there is no evidence that he has an abdominal defect. Calcifications of the xiphoid process can be a normal finding after a sternotomy. There is no evidence that the Veteran had any post-surgical complications. The overall frequency of complications after sternotomy is low. Complications which affect the sternum specifically include paramedian sternotomy, dehiscence, nonunion, secondary osteomyelitis, and mediastinitis. These complications must be differentiated from normal postsurgical changes. Normal findings after a sternotomy include callus formation, small gaps or offsets, and impactions. These postsurgical changes are usually asymptomatic. The examiner stated that the Veteran has had multiple studies and examinations done at the VAMC and none of these have shown that he had any complications because of the 1995 surgery. The examiner stated that he had done extensive review of the Veteran's medical records and did not see evidence of any problems which could have been foreseen or could have been avoided by the providers of the 1995 surgery. He does not have any objective evidence of any complications of that surgery. 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 an abdominal defect or other post-surgical disorder, claimed as a residual of CABG, performed at a VAMC in May 1995. The VA June 2013 medical opinion addendum has clearly indicated that there was no evidence of any abdominal defect or other post-surgical disorder claimed as a residual of CABG, performed at a VAMC in May 1995. There is no evidence, based on CT scans or ultrasound, of a ventral hernia. Finally, the degree of care expected by a reasonable health care provider was exercised in 2005 when the Veteran underwent a CABG. 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. Although there were private medical opinions that indicated the Veteran had a ventral hernia, all of those private findings were made by physicians who physically examined the Veteran, but did not make their opinion in concert with CT scans or ultrasound. Moreover, none of the private examinations which provided an opinion that the Veteran had a ventral hernia, indicated that the cause of the ventral hernia was not reasonably foreseeable. The private physicians only indicated that the Veteran had a ventral hernia, and did not address the cause of the disability, nor did they perform any studies to come to the conclusion that the Veteran had a ventral hernia. The June 2013 VA addendum, however, clearly set forth that the Veteran was obese and had a pendulous abdomen, which would make it very difficult to diagnose any abdominal pathology in a patient with these findings. Using more sophisticated studies than mere physical examination, no findings of a ventral or incisional hernia were determined. There are no contradicting medical opinions of record. Although the Veteran was shown to have evidence of a umbilical hernia, small lipoma, diastasis recti and calcification of the xiphoid process, none were shown to be due to carelessness, negligence, lack of proper skill error in judgment, or similar instance of fault on the part of VA in furnishing the May 1995 surgical treatment. In fact, the September 2012 VA examiner, who authored the June 2013 addendum, affirmatively stated that the umbilical hernia, lipoma and diastasis recti were not the result of the CABG surgery and were causally unrelated. The xiphoid process calcification was a normal post-surgical change. The Veteran has not presented or identified any medical evidence refuting the June 2013 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 foreseeability 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). Although the Veteran indicated in his March 2008 videoconference hearing testimony, that Dr. B.G.P. diagnosed him with a ventral hernia and stated that the hernia was due to his 1995 CABG surgery, the medical evidence of record does indicate that Dr. B.G.P. diagnosed ventral hernia (by physical examination alone), but there is no evidence indicating that Dr. B.G.P. found it was the result of the Veteran's 1995 CABG surgery. The Veteran's lay statements are clearly outweighed by the June 2013 VA professional opinion. That opinion included a review of the examination report, a review of the record, review of the medical literature to substantiate the examiner's findings, and 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 Compensation under the provisions of 38 U.S.C.A. § 1151 for an abdominal defect or other post-surgical disorder, claimed as a residual of CABG, performed at a VAMC in May 1995 is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs