Citation Nr: 1609887 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 10-02 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability, to include aggravation of a pre-existing ventral hernia, claimed as the result of a nephrectomy performed at a VA medical facility in January 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1965 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, the Board finds that a remand is required in this case, as the AOJ has not substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks an award of benefits under 38 U.S.C.A. § 1151, on the basis that his pre-existing ventral hernia was aggravated during a January 2009 nephrectomy, performed at a VA facility. Specifically, the Veteran has contended that his VA surgeon did not follow the "approved plan" for his surgery and ended up cutting the Veteran in an area that caused additional disability to his previously identified ventral hernia. A review of the record reflects that the Veteran was treated for a ventral hernia as early as April 2008 (although a December 2008 primary care note indicates a possible diagnosis of diastasis rectus, not ventral hernia). Post-surgery outpatient notes reflect continued treatment for a ventral hernia; these treatment notes largely refer to this disability as a post-operative complication. In July 2013, the Board directed the AOJ to obtain additional medical records relevant to the Veteran's treatment for his ventral hernia. The Board also directed the AOJ to obtain written consent documents related to the January 2009 nephrectomy. The AOJ subsequently obtained this information and it has been associated with the record. In addition, the Board found that VA had not adequately responded to the Veteran's specific contention regarding aggravation of his pre-existing hernia. As such, the Board requested that the AOJ obtain a VA addendum opinion addressing "whether the Veteran's pre-existing ventral hernia was aggravated by the January 2009 nephrectomy." A VA addendum opinion was provided in October 2013. The opinion stated (in pertinent part): The Veteran did not sustain any additional disability due to 2009 nephrectomy. The Veteran had a post operative infection and also developed an incisional ventral hernia. These are post operative complications that are not unusual and are clearly defined in the risks of surgery provided to the Veteran and signed by the Veteran. Upon review, the Board has no choice but to find that the October 2013 VA addendum opinion is inadequate, as it failed to comply with the Board's explicit instructions. As noted, the record clearly establishes that the Veteran was being treated for a ventral hernia prior to his nephrectomy. There is no conclusive evidence that this disability had resolved prior to his surgery. Thus, the examiner's conclusion that the Veteran's hernia was merely a foreseeable post-operative complication is factually incomplete. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinions that rely on inaccurate factual premises are not entitled to any probative weight). A remand is therefore required in order to obtain another addendum opinion addressing the status of the ventral hernia prior to the January 2009 nephrectomy and whether it was aggravated thereby. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who completed the October 2013 addendum for another addendum regarding the Veteran's claim. If unavailable, records should be forwarded to another qualified examiner. If the examiner determines that another examination is necessary, then such should be arranged. The examiner is requested to offer the following opinions: (a) Did the Veteran have a pre-existing ventral hernia at the time of the January 2009 nephrectomy? In answering this question, specifically discuss the documented VA outpatient records reflecting treatment for ventral hernia in 2008, as well as the December 2008 primary care notation indicating that the Veteran may not in fact have had a ventral hernia but rather a diastasis rectus. (b) If the answer to (a) is affirmative, did the Veteran sustain any aggravation of his pre-existing ventral hernia as a result of the January 2009 nephrectomy? In answering this question, please distinguish between aggravation (of pre-existing disabilities) and post-operative complications. Specifically comment on whether post-operative notations of "incisional ventral hernia" reflected a new disability (i.e., a post-operative complication) or aggravation of a pre-existing hernia. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 2. After the development requested above has been completed to the extent possible, the AOJ should readjudicate the claim on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).