Citation Nr: 21072324 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 19-00 095A DATE: December 2, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an abdominal disability, to include painful scars with chronic abdominal, pelvic, and vaginal pain, is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), adjustment disorder, depression, and anxiety, is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or on account of being housebound is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to December 1977. She appeals a March 2015 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an abdominal disability with residual painful scar, chronic pelvic and vaginal pain, and adjustment disorder due to surgical complications from a VA physician. The AOJ also denied entitlement to SMC based on the need for regular aid and attendance of another person or on account of being housebound. A Board of Veterans' Appeals (Board) hearing was held in July 2021. A transcript is of record. 38 U.S.C. § 1151 for Abdominal Disability with painful scarring and chronic abdominal, pelvic, and vaginal pain The Veteran was admitted to her local VA hospital in August 2011 for abdominal pain. See August 2011 VA treatment records. After a CT scan, VA physicians assessed the cause of this pain to be an appendicolith and a non-invasive diagnostic -laparoscopy procedure was scheduled. Id. During surgery, the scheduled laparoscopy became an "open laparotomy, appendectomy with wedge cecectomy, resection of terminal ileum, [and] anastomosis of terminal ileum to cecum." Id. Three days post operation, the Veteran had fever, chills, increased abdominal pain, and an elevated white blood cell count. See September 2011 VA treatment records. A subsequent CT scan reflected concerns of an anastomotic leak, and the Veteran underwent a second surgery that day for a right hemicolectomy, which left a large surgical incision that remained open, except for one suture placed to reposition the umbilicus. Id. The Veteran's wound closed over time with the use of a wound vac and she was discharged from the hospital one week after her second surgery. Id. During recovery, the Veteran began to suffer severe abdominal pain, mainly in her right upper quadrant, which November 2011 VA treatment records reflect began "when lifting a rather light casserole dish." During recovery, the Veteran felt her incision was "not healing right" and described her pain as sharp, severe, and pulling, as though a knife was sticking in her abdomen. See, e.g., November 2011 and December 2011 VA treatment records. A December 2011 VA CT scan revealed "some remaining lymph nodes around the region of [her colon's] previous leak." In May 2012, the Veteran had a deeply creviced midline scar with "diffuse protrusion to the right of the midline approximately the size of a grapefruit." See May 2012 VA treatment records. Later that month, the Veteran requested immediate hernia surgery after increasing pain. Id. The Veteran underwent surgery for the removal of "two ventral hernias to the right of midline" wherein "Physiomesh using an Echo deployment system and Securestraps" were used. Id. After this surgery, the Veteran continued to suffer from abdominal pain in the same region and was "convinced 'tags' were sticking her in her abdomen." See June 2012 VA treatment records. In May 2013, a CT scan reflected a "single surgical clip" located in the "right upper abdomen" and the record reflects the Veteran's severe pain continued throughout the appeal period. See June 2013 VA treatment records ("pain is sharp on right side of abdomen...above and lateral to umbilicus on right"); see also November 2016 VA treatment records ("surgical clip left in at appendectomy; continues to experience abdominal pain... 'like a pin is sticking in me.'"). The Veteran has multiple contentions regarding these three VA surgeries. Primarily, she contends her first post-operative incision burst due to the carelessness, negligence, lack of proper skill, and fault of the VA physicians who provided the initial laparoscopy, turned laparotomy with appendectomy, cecostomy, resection and anastomosis. See July 2021 Board Hr. Tr. at 5 (Dr. M...said they did not even sew the stitches up tight enough"). The Veteran also contends a surgical clip was left in her abdomen due to the carelessness of a VA physician, is an event not reasonably foreseeable, and caused her current disabilities. See May 2013 Veteran statements. A surgical clip in the Veteran's abdomen is noted in numerous imaging assessments during the appeal period, including a February 2020 VA treatment record noting her medical problems include "adhesions resulting from foreign body left postoperatively from appendectomy and ileocolonic resection 2011." See, e.g. August 2013 Shands Radiology Records ("surgical clip seen in the right lower abdomen"); September 2013 South Georgia Medical Center records ("there appears to be a clip within the right flank, near the level of the kidney. Additional sutures are also seen below this region"); June 2017 VA treatment records ("appendectomy with retained surgical clip"); September 2019 VA treatment records ("a clip is seen in the right mid-abdomen"). Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability in the same manner as if such additional disability was service-connected. A qualifying additional disability is one which is (1) not the result of the veteran's willful misconduct, (2) caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by VA, and (3) the proximate cause of the disability was (A) 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 (B) an event not reasonably foreseeable. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability. Merely showing that a veteran received care and has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Whether an event is reasonably foreseeable is based on what a reasonable health care provider would have foreseen. See 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 368-69 (2013). In February 2015, a VA clinician noted the Veteran's additional disabilities were caused by "the VA treatment at issue;" however, the examiner ultimately concluded these additional disabilities were not the result of carelessness, negligence or lack of skill on the part of the attending VA personnel and her long-term symptoms were reasonably foreseeable from an abdominal surgery. The February 2015 VA clinician did not provide adequate rationale for his medical opinion. Further, he did not address the relevant evidence of record, including the Veteran's lay statements and medical evidence of a surgical clip left in the Veteran's abdomen. Thus, this opinion is not probative. The Board notes the AOJ scheduled subsequent examinations at a VA facility over 2.5 hours from the Veteran's home and when the Veteran contacted VA to note she was "not interested in scheduling exams at that facility" the AOJ never rescheduled the examinations and, instead, noted the Veteran "refused the scheduling." See July 2018 VA Form 21-2507a; see also November 2018 Statement of the Case (SOC). As the record reflects the Veteran is not able to drive herself extended distances due to the aforementioned abdominal pain, the Board finds the Veteran provided good cause and should be entitled to a VA examination at a closer facility, if feasible. See 38 C.F.R. § 3.655. Additionally, the record appears incomplete. VA's duty to assist includes assisting the claimant in the procurement of relevant records, including identified pertinent private medical records. 38 C.F.R. § 3.159(c). The signed consent form for the Veteran's initial August 2011 laparoscopy, turned laparotomy at VAMC Gainesville does not appear to be of record. Additionally, the Veteran submitted two VA Forms 21-4142 in May 2013 for the AOJ to obtain treatment records from the Jacksonville Mayo Clinic and Palmyra Surgical LLC. Although a few records from Palmyra have been submitted or uploaded by VA, it is unclear if all of the records have been obtained and, from the record, the AOJ did not appear to assist in acquiring any of these records. See May 2013 VA Forms 21-4142. On remand, the AOJ must attempt to obtain the Veteran's August 2011 consent forms and all relevant private treatment records. Acquired psychiatric disorder and SMC The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the Board has characterized the claim on appeal to entitlement to service connection for an acquired psychiatric disorder, to include PTSD, adjustment disorder, depression, and anxiety. The Veteran claims her acquired psychiatric disorder was caused by her traumatic experience and is secondary to the residuals of her aforementioned surgeries. She also contends her need for regular aid and attendance is due to these residuals. As these issues are inextricably intertwined, the Board will defer a decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records including, but not necessarily limited to, (a). informed consent documents relating to the Veteran's August 2011 laparoscopy, turned laparotomy at VAMC Gainesville; and (b). records from Dr. Colibaseanu at Jacksonville Mayo Clinic and Dr. V. John Bagnato at Palmyra Surgical. If the informed consent documents or any identified records are not obtainable, or none exist, the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for examinations from an appropriately qualified clinician, other than the clinician who provided the February 2015 VA opinion, and as near to the Veteran's residence as possible, to determine whether the Veteran sustained additional disabilities, to include chronic abdominal, pelvic, and vaginal pain, painful scar, and an acquired psychiatric disorder, as a result of her three abdominal surgeries at Gainesville VAMC. The evidentiary records, including a copy of this remand, must be made available to and reviewed by the examiner. After a thorough review of the record, to include all Gainesville VAMC records, the examiner should answer the following: (a). Did the Veteran suffer additional disabilities, to include chronic abdominal, pelvic, and vaginal pain, painful scar, and acquired psychiatric disorder, as a result of any or all VA surgeries conducted on August 29, 2011, September 1, 2011, and May 25, 2012, where a surgical clip appears to have been left in the Veteran's right abdomen? If so, each additional disability should be clearly identified. The examiner is directed to the following records: August 2013 Shands Radiology Records ("surgical clip seen in the right lower abdomen"); September 2013 South Georgia Medical Center records ("there appears to be a clip within the right flank, near the level of the kidney. Additional sutures are also seen below this region"); June 2017 VA treatment records ("appendectomy with retained surgical clip"); September 2019 VA treatment records ("a clip is seen in the right mid-abdomen"); and February 2020 VA treatment record ("adhesions resulting from foreign body left postoperatively from appendectomy and Ileocolonic resection 2011"). (b). For each additional disability, is it at least as likely as not (i.e., a probability of 50 percent or greater) that such is the result of, or caused by 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? The VA examiner should consider whether the following was carelessness, negligence, or similar instance of fault on the part of VA: (i). the surgical clip left in the Veteran's right abdomen, and (ii). the initial August 29, 2011 laparoscopy turned laparotomy with appendectomy, cecostomy, resection and anastomosis resulting in anastomotic leak that required a second surgery on September 1, 2011. The VA examiner is directed to the October 2011 VA treatment record noting the Veteran suffered a "post-op incision burst, leak, and emergent surgery" and she stated the "surgeons kept apologizing that they messed up [and] apparently nicked intestines." (c). Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider, to include the surgical clip left in the Veteran's abdomen? (d). For each additional disability, was the disability due to an event that was not reasonably foreseeable, to include the surgical clip left in the Veteran's right abdomen? [Note: 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.] The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 3. Thereafter, readjudicate the claims considering all evidence of record. If any benefit sought remains denied, provide the Veteran and her representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.