Citation Nr: 1808254	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO. 11-22 081	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 (2012) for an additional disability of incisional hernia right flank due to treatment by the Department of Veteran Affairs (VA).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1965 to July 1967.

This matter before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In June 2017, the Board remanded the claim for further development. There was substantial compliance with the Board's remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999).


FINDINGS OF FACT

1. The Veteran was initially treated at the VA Medical Center (VAMC) in St. Louis, Missouri on May 5, 2008 for a right renal mass and bilateral hydronephrosis.

2. After affording the Veteran the benefit of the doubt, he experienced an additional disability of incisional hernia right flank following treatment at VA since May 5, 2008.

3. VA's medical treatment and care of the Veteran was not rendered with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA.


CONCLUSION OF LAW

The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for additional disability of incisional hernia right flank due to treatment by VA have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.154, 3.159, 3.361 (2017)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Under the provisions of 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability, which is not the result of a veteran's own willful misconduct or failure to follow instructions, disability compensation may be awarded for a "qualifying additional disability" in the same manner as if the additional disability was service-connected. See 38 C.F.R. § 3.361.

If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C. § 1151. First, the additional disability may qualify for compensation if the disability is not the result of a veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(a).

To determine whether an additional disability was caused by medical treatment, VA compares a veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination, and that a veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(b), (c).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent. 

To determine whether there was informed consent, VA will consider whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32 (2014). "Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient...of the proposed diagnostic or therapeutic procedure or course of treatment." 38 C.F.R. § 17.32(c). The practitioner must explain to the patient, in a language understandable to the patient: the nature of the proposed treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. Id. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent.

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. 38 C.F.R. § 3.361(d). 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. Id.

Regulations further provide that compensation is not payable for the necessary consequences of VA treatment properly administered with the express or implied consent of a veteran or, in appropriate cases, a veteran's representative. "Necessary consequences" are those which are certain or intended to result from the treatment provided. Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would, in fact, be administered. 38 C.F.R. § 3.361.

The Veteran contends that he incurred an incisional hernia right flank as a result of VA medical treatment.

An October 2009 private medical record reflects that the Veteran underwent a right flank incisional hemiorrhaphy with mesh repair. The Veteran had preoperative and post-operative diagnosis of right flank incisional hernia. The private physician indicated that the Veteran had a previous nephrectomy and developed a large incisional hernia from the right-sided wound. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that he developed an additional disability following VA treatment in May 2008. 38 U.S.C. § 5107(b) (2012) 38 C.F.R. § 3.102.

The Board addresses the causation requirement, and determines that the preponderance of the evidence is against a finding that the Veteran sustained an additional disability, to include incisional hernia right flank, as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or that there is any additional disability resulting from VA treatment constituting an event that was not reasonably foreseeable. 

In an August 2016 VA examination report, the examiner indicated that she reviewed the relevant records. She opined that it is less likely than not that the Veteran's incisional hernia was (1) caused by or became worse as a result of VA treatment; (2) resulted from carelessness, negligence, lack of skill, or similar incidence of fault on part of the attending VA personnel; (3) resulted from an event that could not have been reasonably been foreseen by a reasonable healthcare provider; and/or (4) failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. 

The examiner provided the rationale that an incisional hernia is a type of hernia caused by an incompletely-healed surgical wound and that the incision is weakest and most prone to a hernia while it is still healing. She explained that while incisional hernias can develop or enlarge months or years after surgery, they are most likely to happen 3-6 months after surgery. Further, she stated that an incisional hernia happens when a weakness in the muscle of the abdomen allows the tissues of the abdomen to protrude through the muscle. The hernia appears as a bulge under the skin, and can be painful or tender to the touch. She added a patient who gains significant weight after an abdominal surgery, becomes pregnant or participates in activities that increase abdominal pressure like heavy lifting is most at risk for an incisional hernia. The examiner explained that this pressure like heavy lifting is most at risk for an incisional hernia and that the Veteran clearly developed an incisional hernia which was noted a few months after his right renal nephrectomy.

The examiner indicated that she reviewed the signed pre-operation consent (May 2008) which showed that incisional hernia was a known risk factor. She stated that there was no clinical evidence of surgical error and that the Veteran was noted to have been working on fence post repairs that were possibly associated with development of his incisional hernia. The examiner explained that if the incisional hernia is small, surgical repair is an option but not a necessity. If the hernia is large, causes pain or is steadily growing, surgery may be recommended. She added that another option is a truss, a garment that is similar to a weight belt or girdle, that applies constant pressure to the hernia. Further, she stated an incisional hernia may require surgery if it continues to enlarge over time, is very large, cosmetically unappealing or the bulge remains even when the patient is relaxed or lying down. She stated that the Veteran was noted to have persistently large incisional hernia but no evidence of persistent worsening or development of emergent symptoms and the Veteran elected to have repaired the following spring.

The examiner also stated that a timeline review showed evaluation; including computed tomography (CT) scans were obtained in a timely manner after the Veteran reported discomfort. She added that the Veteran elected to have surgical repair but wanted to delay it until the following spring due to the long travel distance and possible poor weather and road conditions. The Veteran's hernia was noted to be large but was easily reducible and not causing emergent symptoms. The Veteran was schedule to have the repair performed in April 2009 with a follow up CT scan prior to surgery. Upon review of the CT scan, the Surgery department concurred that they thought it was not a hernia but rather "that we have defined this less as a hernia and more as a loss of abdominal wall tone/integrity and that the fascial layer under the right rib cage bulges out. This was not unheard of with denervation caused by this flank incision. "Plastics department assessed a hernia and advised no surgery at the time but to recheck in 4 months and consider surgery if it worsened.

In support of her findings, the examiner cited to literature from the Journal of Society of Laparoendoscopic Surgeons, October-December 2004, which stated that "incisional hernias are often diffuse with fascial defects that are usually hard to appreciate. CT scans are modality of choice and allows differentiating them from the abdominal wall musculature denervation atrophy complicating flank incisions. Repairing these hernias is difficult due to the surrounding structures." She added that the Veteran's September 2009 abdominal CT scan showed a large hernia but no incarceration of bowels and that the Veteran subsequently had hernia repair at a private hospital. The October 2009 operative report showed a mesh repair of right flank incisional hernia and a VA abdominal CT from November 2013 was negative for right incisional hernia. Based on a review of the clinical records and timeline of events that the examiner laid out, she found that it is less likely as not that the Veteran's incisional hernia was caused by or became worse as a result of the VA treatment at issue, that the disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, that the disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, or due to failure on the part of VA to timely diagnose and/or properly treat the disability or allowed the disease to continue to progress.

The Board concludes that the August 2016 VA medical opinion and conclusions as to whether the Veteran incurred incisional hernia right flank as a result of VA treatment and whether it was a reasonably foreseeable event given the nature of treatment received at VA to be the most probative evidence of record on this issue. The medical opinion provides competent and probative evidence that weigh against the Veteran's claim because the VA examiner reviewed the claims file and provided a medical opinion supported by well-reasoned rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). While the Veteran attributes fault to VA for his additional disability, the Board finds that a determination that incisional hernia right flank was the result of carelessness, negligence, lack of proper skill, error in judgment, or caused by an event that was not reasonably foreseeable, is a determination medical in nature and the VA examiner's opinion is more probative on the subject of standard of care. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App 370, 374 (2002).

While the Veteran asserts that incisional hernia right flank was incurred as a result of VA treatment, he is not medically trained and is therefore not qualified to competently opine about medical etiology. The Veteran is competent to report symptoms, such as pain and noticeable bulge, which he may have experienced at any time. See Layno, 6 Vet. App. 223, 225. The Veteran has attempted to establish a nexus through his own lay assertions that his incisional hernia right flank was caused by VA's treatment, however, the Veteran is not competent to offer opinions as to the etiology of his incisional hernia right flank. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Incisional hernia right flank requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. The Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his incisional hernia right flank and alleged negligent treatment at VA. 

In a June 2010 statement, the Veteran contended that after having surgery at VA hospital, he returned several times for a check-up and each time he complained of a bulge on his right side. The Veteran reported that he was told by the doctor that it was muscle tissue and it would be "OK in time." The Veteran asserted that he was told by the doctor to continue his normal activities and to "do whatever he wanted to do;" that his right side would tell him if it was "OK" or not. The Veteran indicated that the following checkup, he complained again about the bulge and was told the same thing, that it was muscle tissue and not to worry. The Veteran asserted that he stopped worrying and decided to repair a couple of broken fence posts on his chain-linked fence. He indicated that after replacing a couple of posts, he had pain on his right side and stopped working on the posts. He contended that he returned to the VA hospital and was told that "it was muscle tissue. It will get better. Don't worry." 

A May 12, 2008 VA discharge education record reflects discharge physical activity instructions of "no physical exertion or physical light activity, no heavy lifting for 3 to 4 weeks, and walking encouraged." This is contradictory to the Veteran's report that he was told to continue his normal activities and "do whatever he wanted to do." The May 8, 2008 VA operative note indicates that there were no complications of surgery. A May 23, 2008 VA medical record notes that the Veteran was "doing well" during follow-up visit for the nephrectomy. The Veteran's abdomen was soft, nontender, no masses, and the incision right flank area was healing "good" with staples in place and subsequently removed. A June 9, 2008 VA medical record reveals that the abdomen was soft, had no masses, well healed with no pain. The Veteran was noted to feel better than he expected this soon after his major surgery. A June 24, 2008 VA medical record indicates abdomen benign with well healed scar.

A September 17, 2008 VA medical record reflects no significant problems, abdomen was benign with some bulging around incision with occasional discomfort. A September 29, 2008 VA urology report shows residual weakness in muscle tone and bulge which bothered the Veteran to lie on right side. The medical professional's impression was good post-operative course and that the Veteran's muscle tone may or may not return but it was not an indication of a serious problem. A CT scan of the abdomen was ordered. The October 2008 CT scan revealed a right abdominal incisional hernia. November 2008 VA medical records indicate a post operation incisional hernia. The abdomen was noted as soft, non-tender, scar in right flank with easily reducible, non-tender hernia. The Veteran was presented with the option of a surgical repair of the hernia but was informed that incisional hernia repair has a higher rate of recurrence than other hernia repairs. The Veteran indicated that he would like to proceed with the procedure but wanted to delay it until the following spring. The Veteran was scheduled for an orthotics consultation for an elastic binder for comfort until surgery and instructed to go to the emergency room if any symptom of strangulation appeared (hernia becomes unreducible, sustained abdominal pain, etc.).

December 2009 VA medical records show that the Veteran was scheduled for repair of the incisional hernia around March 2009. It was noted that the Veteran was driving fence posts and that it "may have something to do with it." In March 2009, the Veteran rescheduled his surgery to April 30, 2009 due to his concerns of living four hours away and driving over weathered roads. The Veteran reported no change of symptoms and still had discomfort when lifting objects. There was no report of increasing size incarceration or obstructive symptoms.

In April 2009, VA medical professionals indicated that CT images from the outside hospital were reviewed and that they were in agreement that the Veteran did not so much have a hernia as a loss of muscular integrity. The fascial layer under the right rib cage bulged out. The physician noted that this was not unheard of with the denervation caused by this flank incision and it was quite possible that simply placing a mesh will not help the Veteran. The Veteran was seen by plastic surgery and upon physical examination; a right abdominal wall hernia from rib cage to crest of ilium was noted. The Veteran was not considered a surgical candidate at this point but it was noted that if the hernia enlarged the Veteran would need reconstructive surgery. A customized abdominal binder was recommended. In July 2009, the Veteran reported to the emergency room for incisional pain but there was no significant finding on work up. 

A September 2009 abdominal CT scan showed post operation changes consistent with interval unilateral right nephrectomy with a large herniation on the right side but no incarceration of bowels. In October 2009, the Veteran subsequently had the hernia repair at a private hospital. The operative report showed a mesh repair of right flank incisional hernia.

The medical evidence detailed above does not support the Veteran's assertion that VA medical professionals told him to continue his normal activities and to "do whatever he wanted to do." The timeline of events reveal that the Veteran's right flank bulge occurred after working on fence post repairs after being instructed "no physical exertion or physical light activity, no heavy lifting for 3 to 4 weeks, and walking encouraged" in May 2008 by VA medical professionals. A VA examiner in August 2016 indicated that there was no clinical evidence of surgical error and that the fence post repair is possibly associated with the development of his incisional hernia. Further, the examiner indicated that evaluation of the hernia, including CT scans were obtained in a timely manner after the Veteran reported discomfort. It should be noted that the Veteran does not provide any additional medical evidence or opinions to the contrary and in support of his contentions. The Veteran also has not asserted that VA furnished medical treatment without his informed consent. Regardless, the May 2008 VA medical record reveals that the Veteran provided preoperative informed consent. 

The Veteran also does not meet section 1151's requirements in the alternative as the evidence of record shows that his additional disability following treatment was an event that was reasonably foreseeable. As indicated by the August 2016 VA examiner who reviewed the consent in Vista Imaging and CPRS, the consent directly showed an incisional hernia as a known risk factor of nephrectomy.

In summary, the evidence of record does not reflect that the incisional hernia right flank was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment or was an event that was not reasonably foreseeable.

For these reasons, the Board finds that the preponderance of the evidence is against the claim for additional disability of incisional hernia right flank due to treatment by VA under 38 U.S.C. § 1151, the benefit of the doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
ORDER

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an additional disability of incisional hernia right flank due to treatment by VA, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs