Citation Nr: 20046966 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-05 567 DATE: July 14, 2020 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for stomach bulge is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1967 to November 1971. In July 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2017 and June 2019 the Board of Veterans’ Appeals (Board) remanded the issue remaining on appeal for additional development. This claim must once again be remanded as the medical opinions of record are based on what appears to be an inaccurate factual premise. Specifically, no examiner has identified the basis for the finding that abdominal weakness, atrophy, or bulge predated the Veteran’s September 2012 surgery. Multiple examiners have stated this as a fact and pointed to a July 2012 CT scan as evidence. While not medically trained, the Board does not see any evidence of abdominal weakness, atrophy, or bulge in that CT report. Additional medical opinion is necessary to explain how this report shows a pre-existing disability. For the examiner’s reference, the issue before the Board is entitlement to compensation under 38 U.S.C. § 1151 for a disability manifested by a stomach bulge. Specifically, the Veteran asserts that after undergoing a thoracotomy performed on September 13, 2012 at the Department of Veterans Affairs (VA) Medical Center (VAMC) in Salt Lake City, Utah, he noticed a bulge on the right side of his abdomen. He contends that this abdominal bulge is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA during the September 2012 thoracotomy. By way of history, the medical evidence of record confirms that the Veteran sought treatment in August 2012 for bilateral lung masses, including masses in the right lower lobe. He consented to a planned exploratory thoracoscopy for wedge resections of these masses. Treatment notes indicated that the usual explanation of risks was provided, to include damage to the structures or organs of the lungs. In September 2012, the Veteran underwent a limited right lateral thoracotomy with wedge resection of the right lung x3 and suture repair of small rent in the muscular position of the right diaphragm for a preoperative diagnosis of mass lesions in the right lung of uncertain etiology. At that time, it was explained to the Veteran that thoracotomy would be attempted but that the planned procedure might require conversion to open thoracotomy, which is what ultimately took place. The surgery by Dr. D.B. started as right thoracoscopic wedge resection, but surgical notes indicated that due to anatomic difficulties, was later converted to a limited open thoracotomy with three wedge resections. Post-operative pathologic findings were “probable inflammatory mass lesions.” A small 1 centimeter partial-thickness hemidiaphragm tear was noted and corrected. The Veteran then had an unremarkable five-day recovery at the VAMC in Salt Lake City. In December 2012, the Veteran reported having a bulge on the right side of his abdomen, attesting that it had been present since surgery. He specifically noticed a protrusion on the right upper quadrant of the abdominal wall status post-surgery. Upon examination, it was revealed that he had an unsymmetric abdominal wall with flexion of the abdominal muscles. A CT scan of his abdomen was taken which revealed no evidence of a ventral hernia or any other explanatory findings regarding the bulge. The examiner described “some atrophy of the right abdominal rectus muscle compared to the left.” January 2013 VA treatment records revealed that the bulge persisted on the right side of the Veteran’s abdomen with only slight improvement. In April 2013, a right ventral abdominal hernia was noted that “might represent problems with the thoracoabdominal nerves, extended from his [thoracotomy] scar.” In July 2013, Dr. D.B., who performed the surgery, stated that atrophy of the right rectus muscle was present in a July 11, 2012 CT report, prior to surgery, and was “likely due to his longstanding thoracolumbar vertebral disc disease.” The July 2012 CT report has been associated with the record, and, after a thorough review, the Board has found no indication by either the report or the recorded impressions that the Veteran exhibited signs of preexisting muscular atrophy prior to the September 2012 thoracotomy. While other examination reports were obtained, all relied on this finding by Dr. D.B. in rendering their opinions. Specifically, in a January 2015 medical opinion an examiner pointed to the evidence demonstrating that the Veteran had an atrophic right rectus abdominus muscle demonstrated on a July 2012 CT scan prior to his September 2012 thoracotomy. The examiner concluded that the thoracotomy neither caused the abdominal muscle weakness nor did it appear to have caused a worsening of it. The examiner noted an asymmetrical abdominal wall on examination with the right abdominal wall being more prominent than the left. The examiner noted that the Veteran was morbidly obese and that it was impossible to accurately assess rectus abdominus muscle tone to any degree. The examiner noted that there was no apparent abdominal hernia and as such, he found no additional abdominal or stomach disability caused by the VA provided thoracotomy. At his July 2016 hearing before the undersigned, the Veteran indicated it was hard to bend over because of the bulge he had noticed since the surgery. He had been told it would likely go away, but it had not. A supplemental medical opinion was obtained in July 2017. The examiner reviewed the medical evidence of record and reported he previously examined the Veteran in January 2015. He recorded his previous findings on the Veteran’s August 2012 cardiothoracic surgery clinic visit and September 2012 surgery. The examiner discussed the subsequent course of the Veteran’s treatment. He noted that a November 2013 treatment report reflects that the “most likely cause is recurrent aspiration.” The examiner reported this has nothing to do with the Veteran’s current assertions and appears to have been a reference to the Veteran’s possible separate concerns for GERD and heartburn causing aspiration pneumonia with recurrent pulmonary infiltrates. The examiner explained that the evidence as presented indicates that there was an inadvertent very minor injury (very small one centimeter partial-thickness tear) to the right hemidiaphragm during the Veteran’s VA performed thoracotomy surgery. He reported this was a known potential complication and was at the time of the surgery promptly recognized and corrected. He reported there is no subsequent evidence of any degree of disability related to the diaphragm injury, and that every evaluation of diaphragmatic function has been normal, including a fluoroscopic sniff test and repeated CT scans of the chest and abdomen. The examiner addressed the Veteran’s assertion regarding his stomach bulge and reported the evidence shows that the Veteran has an atrophic right rectus abdominus muscle demonstrated on July 2012 CT scan prior to his thoracotomy. He reported he examined the Veteran and discussed the Veteran’s concerns with the Veteran and his wife. He reported the VA surgery neither caused this unilateral abdominal muscle weakness/atrophy nor appears to have caused any worsening of it. He explained the Veteran was noted to have asymmetric abdominal wall with the right abdominal wall being more prominent that the left, that the Veteran is morbidly obese, and due to this it was impossible to accurately assess rectus abdominus muscle tone to any degree. He reported there is no apparent abdominal hernia and thoracoscopy and thoracotomy scars are well healed and non-painful, and the lungs are clear to auscultation. The examiner stated that there was no injury to the stomach or abdomen. He reported they were clearly not involved in the operative procedure. He reported the stomach bulge has nothing to do with the extremely small nick in the right hemidiaphragm which was promptly repaired during the procedure and caused no disability either in the short-or long-term. He reported the Veteran has a bulge in the abdominal wall, but it pre-dated his surgery, and has nothing to do with the thoracotomy. He opined that it is therefore less likely than not that the September 2012 thoracotomy caused any additional disability in the stomach or abdomen. A gastroenterology specialist reviewed the record and rendered an opinion in March 2020. The specialist opined that there is evidence of weakness/atrophy of the right rectus abdominus muscle on the July 2012 CT scan which is a pre-existing condition likely related to thoracolumbar chronic disc disease. Operative report dated September 13, 2012 reveals only slight injury/nick to the right hernia diaphragm which would not account for rectus bulge. There is no evidence in the medical record that there was any additional disability in the stomach or abdomen due to the thoracotomy surgery. There is no evidence that the thoracotomy as described in the operative report aggravated the natural progression of the right stomach bulge. In addition, there is no evidence of carelessness, lack of skill, negligence, or error in judgement on the part of the VA surgical treatment. The specialist did recognize that a stomach bulge would not be an event reasonably foreseeable as a result of the procedure, but ultimately determined the stomach bulge was not the result of or aggravated by the procedure. This matter is REMANDED for the following action: Obtain an opinion from a specialist (e.g., gastroenterologist) not employed by VA (e.g., from a contractor or medical school). The specialist should address the following: (a) Does the July 2012 CT scan or other diagnostic testing show abdominal weakness, atrophy, and/or bulge pre-existing the September 2012 surgery? If so, please explain what in the report shows any of these problems. (b) If the diagnostic testing does not establish that abdominal weakness, atrophy, and/or bulge pre-existed the September 2012 surgery, is the subsequent abdominal weakness, atrophy, and/or bulge the result of the surgery? Please explain. (c) If the abdominal weakness, atrophy, and/or bulge is the result of the surgery, is such due to either (i) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment, or (ii) an event not reasonably foreseeable (one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided)? Please explain. The Board notes that any opinion simply stating that the July 2012 CT scan shows abdominal weakness, atrophy, and/or bulge without explaining where in the report such is noted, or why the report should be interpreted that way, should be returned for an addendum. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Havelka, 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.