Citation Nr: 20032956 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 14-23 321 DATE: May 12, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for complications of right inguinal herniorrhaphy with mesh, to include hole in upper right groin, hydroceles, weakness of right side from groin down the leg, and emotional distress is denied. FINDINGS OF FACT 1. The Veteran underwent a right inguinal herniorrhaphy in December 1996. 2. The procedure was performed in a VA facility. 3. In his November 2019 VA psychiatric examination, the Veteran denied suffering from emotional distress. 4. The Veteran’s claimed complications of right inguinal herniorrhaphy with mesh, to include hole in upper right groin, hydroceles, and weakness of right side from groin down the leg, are natural progressions of the condition he underwent surgery for in January 1996 and not the result of VA training, hospitalization, medical or surgical treatment, or examination. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for complications of right inguinal herniorrhaphy with mesh, to include hole in upper right groin, hydroceles, weakness of right side from groin down the leg, and emotional distress, have not been met. 38 U.S.C. §§ 1151, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army National Guard for various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). As this is a claim for 38U.S.C. §1151 benefits, the Board will not list the Veteran’s periods of ACDUTRA and INACDUTRA. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 1997 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a timely Notice of Disagreement (NOD) in June 1998. In March 2013, the RO issued a second rating decision addressing the Veteran’s 38 U.S.C. § 1151 claim. Although the appellate process proceeded from the May 2013 rating decision, the claim has properly been appealed from the December 1997 rating decision. This issue was previously before the Board in August 2017 and June 2019. The Board remanded in August 2017 for additional development via a request for records and a medical opinion. An additional VA examination was provided in November 2017. The June 2019 Board decision remanded for an additional opinion, which was provided in November 2019. The June 2019 remand directives were substantially complied with and the matter is back before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2012). 38 U.S.C. § 7107 (a)(2) (2018). 1. Timeliness of substantive appeal This issue was previously before the Board in August 2017 and June 2019. The Board remanded in August 2017 for additional development via a request for records and a medical opinion. The June 2019 Board decision remanded for an additional opinion, which was provided in November 2019. A supplemental statement of the case (SSOC) was issued in March 2020. However, the Veteran never filed a substantive appeal as to this issue. Appellate review is initiated by the filing of a NOD and completed by the filing of a substantive appeal after a SOC or SSOC has been furnished. A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the Veteran, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 3.302 (2017). An extension of the 60-day period for filing a substantive appeal may be granted for good cause, but such extension request must be made prior to the expiration of the time limit for filing a substantive appeal. See 38 C.F.R. § 20.303 (2017). The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) has held that the filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board’s jurisdiction and, consequently, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Nonetheless, if a substantive appeal was not timely filed, the Board may decline to exercise jurisdiction over an appeal. Id. Here, the AOJ issued an SSOC in March 2020; the Veteran did not submit a substantive appeal. However, the Veteran did contact his congressman inquiring about the status of his appeal in March 2020. The congressional liaison then contacted VA on behalf of the Veteran. In this case, the Veteran did not file a request for an extension of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. However, since the issuing of the March 2020 SOC, the Veteran has contacted his congressman about his appeal, the RO has treated the claim as having been timely appealed, and the issue has been certified to the Board, all indicating that the Veteran still disagrees with the denial of his claim. See Percy, 23 Vet. App. at 45. Under these circumstances, the Board accepts jurisdiction of the claim of entitlement to compensation under 38 U.S.C. § 1151 for complications of right inguinal herniorrhaphy. 2. Entitlement to compensation under 38 U.S.C. § 1151 for complications of right inguinal herniorrhaphy with mesh, to include hole in upper right groin, hydroceles, weakness of right side from groin down the leg, and emotional distress A Veteran may be awarded compensation for an additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701 (3)(A), and the proximate cause of the disability was (1) 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 (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361 (c), (d)(1), (d)(2). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently recognized that a claimant may succeed under a referral theory pursuant to 38 U.S.C. § 1151 if VA doctors were the proximate cause of the performance of a certain medical procedure. Ollis v. Shulkin, 857 F.3d 1338 (Fed. Cir. 2017). In Ollis, the Federal Circuit addressed the application of § 1151 to referral situations when the disability-causing event occurs during a medical procedure not performed by a VA doctor or in a VA facility. The Court determined that even where benefits could not be granted under 38 U.S.C. § 1151 (a)(1)(A) on a negligence theory, because the medical services rendered were performed by a non-VA provider at a non-VA facility, benefits could be granted under a referral theory pursuant § 1151(a)(1)(B) as an event not reasonably foreseeable. The Federal Circuit held that when recovery is predicated on a referral theory involving an unforeseeable event under § 1151(a)(1)(B), § 1151(a)(1) requires that the VA medical care proximately cause the medical treatment or care during which the unforeseeable event occurred. The Federal Circuit further held that § 1151(a)(1)(B) requires that the unforeseeable event proximately cause the additional disability. “As such, the chain of causation has two components (neither of which requires fault)-i.e., proximate cause between VA medical care and the treatment, and proximate cause between the unforeseeable event and the disability.” Ollis, 857 F.3d at 1346. To determine whether a Veteran has an additional disability, VA compares the Veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran’s condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361 (b). VA considers each involved body part or system separately. Id. If an additional disability is shown, actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that a veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). To establish that the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the claimant must show either (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the care, treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361 (d)(1). Alternatively, to establish that the proximate cause of a disability was an event that was not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. The event does not have to be “completely unforeseeable or unimaginable” but it must “be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” 38 C.F.R. § 3.361 (d)(1). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(1)(ii). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic procedure or course of treatment. 38 C.F.R. § 17.32 (c). The informed consent must be appropriately documented in the health record and a signature is required for all treatments and procedures that require the use of sedation, anesthesia, or narcotic analgesia, that are considered to produce significant discomfort to the patient, or that require injections of any substance into a space of body cavity. 38 C.F.R. § 17.32 (d)(1). The Veteran contends that he is entitled to benefits for residuals of the January 1996 right inguinal herniorrhaphy because it resulted in additional disabilities. The Board notes that, given the date of the Veteran’s claim (March 1996), an older version of the law regarding 38 U.S.C. § 1151 applies here. The version of the law and regulation applicable to the present case provides that where a Veteran suffers additional disability resulting from a disease or injury, or an aggravation of an existing disease or injury, as the result of VA hospitalization, medical or surgical treatment, or examination, compensation may be paid in the same manner as if the disability or aggravation were service connected. 38 U.S.C. § 1151 (West 1991). Compensation is precluded where disability: (1) is not causally related to VA hospitalization or medical or surgical treatment; or (2) is merely coincidental with the VA hospitalization or medical or surgical treatment; or (3) is the continuance or natural progress of diseases or injuries for which VA hospitalization or medical or surgical treatment was authorized; or (4) is the certain or near certain result of the VA hospitalization or medical or surgical treatment. Where a causal connection exists, there is no willful misconduct, and the additional disability does not fall into one of the above-listed exceptions, the additional disability will be compensated as if service-connected. 38 C.F.R. § 3.358 (effective prior to October 1, 1997). In Brown v. Gardner, 513 U.S. 115, 119-121 (1994), the U.S. Supreme Court found that the statutory language of 38 U.S.C. § 1151, as it existed at the time, simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of “fault” on the part of VA. As such, neither evidence of an unforeseen event nor evidence of VA negligence or fault would be required in order for this claim to be granted. The only question for consideration is whether the Veteran has additional disability, claimed as a hole in his upper right groin, hydroceles, weakness of the right side from the groin down to the leg, or emotional distress as a result of VA training, hospitalization, medical or surgical treatment, or examination. Any such additional disability; however, must have been neither a continuance nor natural progression of the Veteran’s disease or injury nor a necessary consequence of the surgery (i.e., intended to result from, or was certain to result from, the surgery performed). VA treatment records show the Veteran underwent a right inguinal herniorrhaphy with mesh in January 1996. The VA treatment record shows that the Veteran underwent a right inguinal hernia repair without complications. The Veteran received spinal anesthesia and a licensed physician performed the surgery. The Veteran was discharged under stable conditions. A July 1999 VA treatment record shows complaints of occasional right groin pain. The Veteran reported the pain beginning within the previous three months. An August 1999 VA treatment record shows the presence of bilateral hydroceles, both greater than the size of a golf ball. The Veteran complained of a constant dull pain in the scrotum as well as erectile dysfunction since his January 1996 surgery. The VA physician found no hernia sac on the Veteran’s right side. A December 1999 VA treatment record shows the Veteran’s report of a golf-size hydrocele, noted by his private urologist. A February 2000 VA treatment record shows the Veteran’s report that he was seeing a private urologist for problems with hydroceles. An August 2000 VA treatment record shows the presence of bilateral hydroceles. The VA physician determined there are not enough hydrocele symptoms to warrant surgical intervention and surgery would cause scarring, similar to the Veteran’s hernia surgery. A February 2003 VA treatment record shows the Veteran’s complaints about erectile dysfunction immediately following his January 1996 surgery. The Veteran further reported that, two to three years after his surgery, he developed bilateral hydroceles with pain in his testes occurring off and on. An April 2003 VA treatment record shows the presence of bilateral hydroceles. The VA physician noted no testicular or epididymal tenderness. A May 2012 VA treatment record shows the Veteran’s complaint of pain and discomfort in the right inguinal area. The Veteran reported that at his urology appointment a few days prior, the urologist found no hernia but the Veteran forgot to ask about his pain. The Veteran stated that he has to place his finger in “hole” in the inguinal area to decrease pain when it flares up and that the pain was similar to his past hernia pain. A June 2015 VA treatment record shows no complaints regarding erectile dysfunction or hydroceles. In accordance with the June 2019 remand, the Veteran was afforded VA examinations for hernia and male reproductive disabilities as well as psychiatric disability in November 2019. The hernia and male reproductive disabilities VA examination noted an inguinal hernia diagnosis in 1996. The Veteran reported having a right inguinal hernia repair procedure in 1996 and that the surgery was “botched” by a medical student and that he was under general anesthesia. The Veteran stated that, after the surgery, he suffered from hydroceles, chronic discomfort in his scrotum, and persistent right groin pain. The VA examiner opined that it is less likely than not that the Veteran’s claimed complications of right inguinal herniorrhaphy were caused by or became worse as a result of VA treatment. In support of her opinion, the VA examiner reported that there was no “hole” in the Veteran’s groin following her own examination and stated that examination by the December 1996 surgeon noted a normal outcome for a small palpable defect to be present post-operatively after hernia repair. Furthermore, the VA examiner found no weakness on the Veteran’s right side nor in any reports post-operative after the Veteran’s spinal anesthesia wore off. The VA examiner also stated that there is no evidence that the Veteran’s hernia repair would result in his hydroceles, diagnosed in 1999. The Veteran had no chronic infection, swelling or other fluid production of the groin related to post-operative inguinal hernia. Thus, the VA examiner reasoned that it is more likely the Veteran’s hydroceles were idiopathic. The VA examiner further reported that, while the Veteran reported erectile problems following surgery, he denied erectile dysfunction to her during the examination. The VA examiner opined that there was no evidence in the December 1996 operative report to suggest that there was carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel. Following a review of the surgical report, the VA examiner stated there was no evidence a medical student performed the surgery. The VA examiner reported that a credentialed physician performed the surgery under the direction of the attending physician, which is the standard of care in a teaching hospital as noted in the surgical report. The VA examiner opined that it was less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable health provider. The VA examiner reasoned that the development of bilateral hydroceles is not a result of herniorrhaphy. The VA examiner opined that it was less likely as not that failure on the part of VA to timely diagnose and/or properly treat the claimed disability allowed the disability to continue to progress. The VA examiner reported that the Veteran developed bilateral hydroceles in 1999, three years after his inguinal hernia surgery. Finally, the VA examiner opined that the Veteran’s additional disabilities, including chronic right groin pain, hydroceles, erectile problems, and testes pain, are the continuance or natural progression of diseases or injuries for which the January 1996 herniorrhaphy was authorized. The VA examiner stated that, after extensive review and analysis of the available published data, there is no definitive answer to whether mesh causes pain after hernia repair; sometimes mesh causes pain at times and on other occasions it has been proven not to cause pain. Review of the Veteran’s medical records reveal no evidence of hydroceles or groin pain from March 2007 to January 2010, when the Veteran complained of occasional hernia pain. The VA examiner also cited to an August 2017 VA treatment note that showed no evidence of recurrent right inguinal hernia. Thus, according to the VA examiner, the Veteran’s chronic right groin pain, hydroceles, erectile problems, and testes pain are a natural progression and not a result of the January 1966 surgery. In accordance with the June 2019 remand, the Veteran was afforded a VA psychiatric examination to evaluate his claims of emotional distress. The VA examiner found no diagnosed mental disorder. The Veteran himself denied that he has ever been affected by a mental disorder and denied any knowledge of emotional distress. Thus, the VA examiner opined that it was less likely than not that the claimed psychiatric disability was caused by or became worse as a result of VA treatment, that an additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault, on the part of the attending VA personnel, that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and that failure on the part of VA to timely diagnose and/or properly treat the claimed disability allowed the disability to continue to progress. In support of his opinion, the VA examiner stated that the Veteran himself denied any additional disease or disability. After a review of all the evidence under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for complications of right inguinal herniorrhaphy with mesh, to include hole in upper right groin, hydroceles, weakness of right side from groin down the leg, and emotional distress. The Board notes that the Veteran is not competent to provide an opinion as to whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault or whether any such failure to meet the standard of care resulted in complications of right inguinal herniorrhaphy. Any such opinion would require detailed knowledge, training, and/or experience. See, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple disability such as a broken leg, but not competent to provide evidence as to more complex medical questions). In expressing an opinion as to cause and negligence, the Veteran is not reporting readily apparent symptoms (rather he is providing lay opinion on the cause of observable symptoms), nor is he reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional. See, Jandreau, 492 F.3d at 1377. Likewise, the Board is not competent, under the facts of this case, to determine the medical standard of care without reference to the opinion of competent medical professional. See, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding the Board may not make medical determinations). Whether the Veteran’s VA medical professionals met the standard of care is a question that requires competent medical evidence to resolve. The Board concludes that the November 2019 opinions from the VA examiners are probative and persuasive on the issue of whether the Veteran’s claimed complications of right inguinal herniorrhaphy were the result of negligence or substandard care. The hernia and male reproductive VA examiner provided negative opinions and provided reasoned rationales for her conclusions. The VA examiner cited to current medical literature, supported her findings with the Veteran’s entire treatment record, and conducted a physical examination. The Board assigns the opinion considerable probative value. There are no contrary opinions of record. Furthermore, the Veteran denied experiencing emotional distress in his VA psychiatric examination. The November 2019 hernia VA examiner stated that the Veteran’s additional disabilities, including chronic right groin pain, hydroceles, erectile problems, and testes pain, are the continuance or natural progression of diseases or injuries for which the January 1996 herniorrhaphy was authorized. Under Brown, in order to claim entitlement under 38 U.S.C. § 1151, the Veteran must suffer an additional disability as a result of VA training, hospitalization, medical or surgical treatment, or examination. Any such additional disability; however, must have been neither a continuance nor natural progression of the Veteran’s disease or injury nor a necessary consequence of the surgery. Thus, because the VA examiner determined that the Veteran’s additional disabilities are natural progressions of the condition he was treated for in January 1996, he is not entitled to compensation under 38 U.S.C. § 1151. (Continued on the next page)   Although the Veteran asserts that a medical student performed his surgery, the Board finds there is no competent opinion or evidence that any VA health care provider did, in fact, fail to exercise the degree of care that would be expected of a reasonable health care provider. The November 2019 hernia VA examiner specifically stated that the Veteran’s surgeon was a certified physician and this was a normal standard of care in a teaching hospital. The greater weight of the evidence is against finding that any VA health care provider violated the applicable standard of care. In light of the above, the Board finds that the competent medical evidence of record is against the Veteran’s claim and that the Veteran did not incur additional disability following his surgery in January 1996 that was not reasonably foreseeable and/or that it was the result of a sub-standard of care nor was claimed complications of right inguinal herniorrhaphy caused by or became worse as a result of the VA treatment as issue. As such, the benefit of the doubt rule is therefore not applicable. See, 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, Associate Counsel 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.