Citation Nr: 20002182 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-25 310 DATE: January 9, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from February 21, 2013 and November 21, 2013 abdominal procedures performed at a VA Medical Center (VAMC), claimed as right spigelian hernia, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from February 21, 2013 and November 21, 2013 abdominal procedures performed at a VAMC, claimed as left inguinal hernia pain and bulge, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from February 21, 2013 and November 21, 2013 abdominal procedures performed at a VAMC, claimed as constipation, is remanded. REASONS FOR REMAND The Veteran had active service from January 1985 to January 1989. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before the Board in March 2019. VA provided her with notice of the hearing in January 2019; however, she failed to report for the hearing. She did not provide good cause for failing to attend the hearing and has not asked to reschedule it. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). The claims for compensation under 38 U.S.C. § 1151 for additional disabilities resulting from February 21, 2013 and November 21, 2013 abdominal procedures performed at a VAMC are remanded. The Veteran seeks compensation under 38 U.S.C. § 1151 for additional disabilities resulting from surgery performed on February 21, 2013 and November 21, 2013, claimed as right spigelian hernia, left inguinal hernia pain and bulge, and constipation. The Veteran asserts that she has additional disabilities due to the carelessness, negligence, and error in judgment of her VA providers and that the errors in February 2013 led to two additional follow-up surgeries in November 2013 and June 2014. She also states that she was dropped after her November 2013 surgery, which caused severe pain and a moderate sized bulge in the right side of her abdomen. Treatment records indicate that the Veteran had an abdominoplasty, repair of abdominal diastasis with mesh, umbilicoplasty, on February 21, 2013. The pre-operative diagnosis was abdominal hernia. The post-operative diagnosis was abdominal diastasis. In May 2013, the Veteran reported sudden recurrence of her hernia and in October 2013, she requested surgery to repair the abdominal diastasis with mesh. She reported worsening pain and bulging, as well as worsening constipation. The second surgery occurred in November 2013. VA treatment records dated in June 2014 show the Veteran reported that she had a hard drop onto her right side while being transferred from the bed post-op with severe pain. Records indicate that she has since developed a progressively enlarging bulge in the right lower abdomen along the abdominoplasty scar, which is painful. The June 2014 surgical report shows surgery for recurrent ventral incisional hernia. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C. § 1151. The statute contains two causation elements - an additional disability must not only be “caused by” the hospital care or medical treatment received from VA, but also must be proximately caused” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151(a)(1). Here, the Board finds that a remand is required before an adjudication of the claims. Specifically, a medical opinion is required to determine the proximate cause of any additional disability caused by the procedures performed on February 21, 2013 and November 21, 2013. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matters are REMANDED for the following actions: 1. Associate with the claims file all VA treatment records. 2. Schedule the Veteran for a VA examination regarding her claims for compensation under 38 U.S.C. § 1151. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should answer the following questions: (a) Does the Veteran have any additional disability or disabilities, resulting from the February 2013 or November 2013 procedures? If yes, please specifically list all chronic residuals in the report. (b) For each additional disability due to the February 2013 and November 2013 procedures found, is it at least as likely as not (50 percent probability or greater) that it is the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA? In other words, did VA fail to exercise the degree of care that would be expected of a reasonable health-care provider? 3. (c) For each additional disability due to the February 2013 and November 2013 procedures found, is it at least as likely as not (50 percent probability or greater) that it is due to an event that was not reasonably foreseeable? A complete rationale must be provided for all opinions reached. 4. Then, readjudicate the Veteran’s claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and her representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.