Citation Nr: 21010057 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 19-24 857 DATE: February 24, 2021 REMANDED Entitlement to an increased disability rating in excess of 10 percent for bilateral hearing loss is remanded. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of abdominal surgery, claimed to have been caused by an inadequate surgical procedure performed by the Department of Veterans Affairs (VA) in 1979, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from August 1956 to June 1960, and from February 1961 to January 1969. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 VA Regional Office (RO) rating decision. By way of history, in March 2014 the Veteran filed a claim for compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for claimed additional disability of painful and tender scar and a hernia disability, claimed as due to 1979 stomach surgery at the VA Medical Center (VAMC) in Tuskegee, Alabama. In a subsequent January 2015 rating decision, the RO denied 38 U.S.C. § 1151 benefits for a painful and tender scar and a hernia condition. In August 2016, the Veteran filed a claim for an abdomen injury related to abdominal surgery at the Tuskegee, Alabama VAMC in 1979. The RO took this as a claim to reopen the prior 38 U.S.C. § 1151 claim, and in an April 2017 rating decision, the RO reopened and then again denied the issue of 38 U.S.C. § 1151 benefits for a painful and tender scar and a hernia condition. VA received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran in April 2018. Relevant to the instant matter, in the “disabilities” section the Veteran wrote “appendectomy with scar” and “appendectomy with residual issue.” The RO interpreted this to be a claim for direct service connection for appendectomy residuals, and developed it as such. In a June 2018 rating decision, the RO denied the issue of service connection for history of appendectomy with residuals and scars. The Veteran subsequently appealed the June 2018 denial; however, in multiple subsequent statements throughout the course of this appeal, and in testimony at a January 2021 virtual Board hearing, the Veteran clarified that the actual issue on appeal was entitlement to benefits under the provisions of 38 U.S.C. § 1151 for residuals of an appendectomy performed by the VAMC in Tuskegee, Alabama in 1979. Do to conflicting evidence of record, the Board has found it most appropriate to frame the issue on appeal as entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of abdominal surgery, claimed to have been caused by an inadequate surgical procedure performed by VA in 1979. While the Veteran’s previous 38 U.S.C. § 1151 claims both stem from a 1979 procedure, the Board notes that the original claim sought benefits for hernia surgery, while the current claim seeks benefits for an appendectomy. Nonetheless, even assuming that the question of 38 U.S.C. § 1151 benefits needs to be reopened, adequate new and material evidence was provided at the January 2021 virtual Board hearing to warrant reopening; therefore, the Board finds that the RO need not address the question of whether new and material evidence has been received on remand, and the 38 U.S.C. § 1151 issue should be adjudicated on the merits. 38 C.F.R. § 3.156. The Veteran testified at a January 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. 1. Increased Disability Rating for Bilateral Hearing Loss A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran last received a VA audiometric examination in June 2018. At the January 2021 virtual Board hearing, both the Veteran and spouse testified to worsening hearing loss symptoms since that examination; therefore, remand for a new VA audiometric examination is warranted. 2. 38 U.S.C. § 1151 Benefits VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Throughout the course of this appeal, the Veteran has argued that in 1979 the VAMC in Tuskegee, Alabama, performed a (possibly unnecessary) appendectomy or other abdominal surgery. Unfortunately, the record reflects that both VA and the Veteran have attempted unsuccessfully to obtain the VAMC treatment records related to this surgical procedure. Per the VAMC in Tuskegee, Alabama, no such records can be found. Nonetheless, the Board finds the Veteran’s statements credible as the report from a May 2018 VA scar examination specifically diagnosed appendectomy scars of both the right upper quadrant and the right lower quadrant. Over thirty years later, the Veteran began experiencing bleeding around the surgical scar site. Per a February 2014 private treatment letter, upon the Veteran seeking treatment for a hernia, the private physician noted multiple draining areas on the abdominal wall. Examining the Veteran, the private physician found that fascia sutures from prior abdominal surgery were causing a draining sinus tract. The Veteran underwent two surgical procedures to have the residual suture material removed from the abdominal incision in 1979. The Veteran argues that one or more additional disabilities, to include scarring, hernia development, and draining sinus tracts, are due to VA using improper sutures or incomplete suturing to seal the wound following abdominal/appendectomy surgery. It is the Veteran’s contention that the improper sutures, which were not designed to degenerate in the body, started to emerge through the skin at the scar site, causing additional disability. Considering the above, the Board finds remand for a 38 U.S.C. § 1151 examination and opinion to be warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning hearing loss or residuals of abdominal surgery. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran’s hearing loss or residuals of abdominal surgery, not already of record, for the period from July 2020. 3. Schedule a VA audiometric examination to assist in determining the current level of severity of the service connected bilateral hearing loss. The VA examiner should report the extent of all bilateral hearing loss symptoms in accordance with VA rating criteria. 4. Schedule the appropriate VA examination to assist in determining whether 38 U.S.C. § 1151 benefits are warranted. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: A) After examining the Veteran’s abdominal area, the VA examiner should identify any additional disabilities related to the 1979 VA abdominal surgery beyond what would be a natural consequence of the procedure, to include scarring and/or scarring residuals beyond what would be expected from the surgical procedure, including hernia development and draining sinus tracts. B) To the extent possible without access to the 1979 surgical records, for each such additional disability diagnosed (if any), the examiner should indicate whether any fault in the treatment provided by VA was a factor that caused the additional disability. In other words, was the additional disability due to VA’s failure to exercise the degree of care that would be expected of a reasonable health care provider. The VA examiner should also comment on the overall standard of care provided (again, if possible). Specifically, the VA examiner should address whether i) the abdominal surgery was necessary and/or appropriate, ii) whether the type of sutures used at the time were appropriate, and iii) whether the sutures were applied correctly and with adequate skill and ability. C) For each additional disability identified that is not due to fault on the part of VA, was it reasonably foreseeable that such additional disability or disabilities could occur? D) For each additional disability identified that was not due to fault on the part of VA and was reasonably foreseeable, would a reasonable health care provider have informed the Veteran of the risk of developing such additional disabilities? 5. Then, readjudicate the remanded issues. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.