Citation Nr: 1420000	
Decision Date: 05/05/14    Archive Date: 05/16/14

DOCKET NO.  12-10 720	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE


Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of stomach surgery.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from July 1962 to March 1967.  

This appeal to the Board of Veterans' Appeals (BVA) originated from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

Unfortunately, the Veteran died in September 2011.  For claimants who died on or after October 10, 2008, (as is the case here), the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) created a new 38 U.S.C.A. § 5121A, which permits an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  In this case, the record reflects that after the Veteran's death, the Veteran's wife (now the appellant in this case) submitted evidence that showed that she was the Veteran's wife at the time of his death, and the RO subsequently approved her application for substitution.  With this background, the Board recognizes the substitution of the Veteran's surviving spouse as the appellant in this case. 

The appellant presented testimony before the Board at a video-conference hearing in November 2013.



FINDING OF FACT

The Veteran had additional stomach disability caused by VA treatment and 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 treatment.


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. § 1151 for residuals of stomach surgery have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.361 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 1151, compensation is available to a Veteran when additional disability is caused by VA medical or surgical treatment and the proximate cause of the disability is (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment; or (B) an event not reasonably foreseeable.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.

Here, the Veteran was hospitalized at a private hospital in December 1999 for repair of a large ventricle incisional hernia with mesh implant.  In November 2003, he was seen in a VA emergency room due to increased redness of the abdominal wall at the surgical site with associated chills and sweats.  He was found to have fluid collection anterior to the ventral mesh.  The day following his admission, the fluid spontaneously drained and the wound was debrided and the cavity was explored; a culture was sent out.  He was discharged in December 2003 with home care service.  From this point on, he experienced recurrent problems and complications associated with the ventral hernia mesh.  

In January 2004, he returned to the VA emergency room with symptoms of abdominal wall tenderness and firmness, chills, fever, and odorous discharge.  A CT scan revealed a large collection of fluid.  The assessment was abdominal wall abscess, which was debrided at bedside and monitored.  Blood cultures were positive for gm and cocci.  A pre-operative surgical progress note indicated he was in urgent need of removal of the infected mesh and irrigation of the wound, which was accomplished that same day.

In March 2004, he was diagnosed with osteomyelitis that was likely related to MSSA-infected ventral hernia repair from January of that year.  

A May 2005 addendum note from a VA physician shows Dr. A. S. was concerned the Veteran was not getting proper wound care.

An August 2005 VA record indicated the Veteran's wound had persistent draining sinuses, although a recent CT scan revealed no abscess collection beneath the wound.  Examination of the sinuses revealed black material at the base, portions of which were removed.  The sinuses were debrided of all the mesh that was easily obtainable.  The assessment was there was retained mesh within the wound causing a foreign body reaction and preventing further healing.

In September 2005, the Veteran's wound had visible portions of mesh that were removed.  The physician noted the Veteran still had retained mesh and it was believed the mesh would eventually work its way out of the wound.  

In February 2006, the Veteran reported no improvement in the infected mesh.  There were 3 small opening in the wound that drained foul-smelling fluid.  Mesh was visualized that was removed using pickups and scissors.  Additional mesh was noted but not removed due to possible adherence to the bowel.  The assessment notes status post umbilical hernia repair 2 years earlier complicated by dehiscence, wound infection, MSSA bacteremia with subsequent osteomyelitis, and chronic infected mesh status post surgical removal of infected mesh.  It was expected that the infected mesh would work its way out of the wound, but due to chronic infection and pain with no improvement, the best course was partial removal of the infected mesh in the operating room.  The surgery was performed the following month without complications.  The findings were large area at mid abdomen of mesh that was infected and clearly intraperitoneal; there were also multiple adhesions lysed.

A September 2007 VA record notes the Veteran still had a large ventral hernia with an open wound with a draining sinus tract.  He underwent elective abdominal exploration that was to include possible removal of mesh, but the operative report indicates debridement, drainage, irrigation and suction, and implantation of betadine mesh in the lower portion of the wound.

In April 2009, the Veteran was seen by orthopedic for possible total hip replacement.  On examination, he was found to have an abdominal wound with copious foul smelling drainage that appeared grossly infected.  A June 2009 discharge summary states the Veteran had significant pain that required hip replacement, but "Orthopedics would not pursue the procedure until his abdominal wounds are cared for appropriately to reduce the risk of infection to the hips prosthesis."

In June 2009, he underwent debridement of fascia; excision of fascial sinus tract; small bowel resection and primary repair; lysis adhesions; and repair of ventral hernia with veritas collagen matrix.

In October 2010, a nurse practitioner indicated she reviewed the Veteran's VA treatment records from November 2003 to March 2010 that were provided to her, and that there were additional records missing during this period that would make her review complete.  She summarized the records at her disposal and offered several opinions.  In essence, she found several failures on VA's part in the Veteran's treatment and possibly an issue with surgical technique in the June 2009 resection and repair of the small bowel.  She concluded these potential failures to meet the standards of care resulted in chronic abdominal pain, chronic wound infections, and open non-healing abdominal wounds.

In February 2011, a private physician offered a statement after reviewing extensive documents in which he opined the Veteran "was the unfortunate victim of deviations from the standards of care and was caused because of this to suffer grievously".  He added it became abundantly apparent that the mesh had failed and, as such, was a source of infections processes that required complete elimination and removal, which was not done.  Failure to do so led to continuing complications.  Had proper techniques and methods been employed in the 2003 to 2004 time frame and thereafter healing in all likelihood would have occurred and the Veteran would have been restored to good health.  He adopted many of the findings made by the nurse.

VA obtained an opinion by a Chief of Surgery at the VA Medical Center in West Roxbury, Massachusetts in May 2013.  The surgeon opined the Veteran received standard of care every time he was seen.  He stated this was a complex problem in a person who was obese and diabetic where complete mesh excision was very difficult to achieve and ongoing infection very difficult to control.  Every time he was admitted he received appropriate treatment in a timely manner.  Very radical surgery, extent of debridement and the use of different meshes from the ones used at VA is a matter of controversy and a matter of judgment by the treating surgeon who in this case did not deviate from the standard care.  The course of event is unfortunately not unusual in patients sustaining a mesh infection and is not the result of poor care received at the West Haven VA.

In view of the foregoing, the Board finds that the evidence for and against the claim is in equipoise.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Therefore, entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of stomach surgery is granted.


ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of stomach surgery is granted.


____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs