Citation Nr: 21022787 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 20-00 769 DATE: April 19, 2021 ORDER Compensation benefits pursuant to 38 U.S.C. § 1151 for an inguinal hernia is denied. REMANDED Service connection for an inguinal hernia, including due to herbicide agent exposure, is remanded. FINDING OF FACT The Veteran does not have an additional disability of a left inguinal hernia that was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for 38 U.S.C. § 1151 benefits for an inguinal hernia have not been met. 38 U.S.C. §§ 1151, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.154, 3.159, 3.361, 3.800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from June 1965 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection and 1151 benefits for a hernia condition. In August 2020, the Board remanded the issues on appeal for additional development to obtain a signed copy of the consent form and an 1151 VA medical opinion. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the August 2020 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). With regard to the issue of § 1151 benefits for a left inguinal hernia, the Board finds that the duties to notify and assist in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service connection for an inguinal hernia is REMANDED for additional development. 38 U.S.C. § 1151 Compensation Requirements Compensation under the provisions of 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service connected. A disability is a qualifying additional disability if (1) the disability was not the result of the veteran’s willful misconduct; (2) was caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by VA either by a VA employee or in a VA facility; and (3) the proximate cause of the disability was 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 an event not reasonably foreseeable. In determining whether a veteran sustained additional disability, VA compares his or her condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his or her condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability or death. Merely showing that a veteran received care or treatment and that the veteran has an additional disability, or died, does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. In addition, the proximate cause of death is the action or event that directly caused the death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s disability or death; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Determinations as to whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of an additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 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. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). 1151 Compensation for an Inguinal Hernia The Veteran contends that he developed a growth on the left testicle that was removed via surgery. The Veteran asserts that § 1151 benefits are warranted because he developed a hernia after the surgery. See February 2021 representative brief, December 2019 VA Form 9. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the left inguinal hernia is not due to VA fault or an event not reasonably foreseeable. A review of VA treatment records dated from 2016 show that the Veteran presented for a left testicular mass that he noticed at least one year prior. A scrotal ultrasound was ordered in October 2016, which confirmed a small indeterminate hyperechoic nodule in the left testicle for which a urology consultation was recommended. Tumor markers were ordered during a November 2016 urology consultation. Following the urology workup, the Veteran agreed to undergo a left radical orchiectomy. See October 2016, November 2016, December 2016 VA treatment records. A review of the informed consent form dated December 7, 2016 shows that the Veteran planned to undergo a radical orchiectomy of the left testicle for suspected testicular cancer. The consent form, which was signed by the Veteran, identified “incisional hernia” as a known risk of the procedure and warned that “weak scar tissue may allow tissue to bulge through the cut.” Additionally, in signing the consent form, the Veteran affirmed that someone explained the benefits of the procedure, advised what could potentially go wrong, and was offered the opportunity to read the consent form, before giving informed consent to undergo the procedure. The Veteran underwent the left radical orchiectomy for left testicular mass on December 15, 2016, and the surgical note indicates that the procedure was conducted without operative complication. See December 2016 VA treatment records. Post-operative urology follow-ups indicate that the pathology of the testicular tumor was benign. The Veteran reported intermittent left inguinal pain near the previous incision site that developed in May 2017, after the December 2016 left radical orchiectomy, for which an inguinal ultrasound was ordered. A repeat scrotal ultrasound showed small omental fat containing a left inguinal hernia. Treatment notes show that the inguinal hernia was treated with a truss belt to help support the hernia; however, the Veteran was not interested in surgical intervention for the hernia. See January 2017, February 2018, April 2018, June 2018, October 2018, March 2019 VA treatment records. A VA medical opinion was provided in October 2020. After reviewing the record, the October 2020 VA examiner summarized the relevant medical history pertaining to the December 2016 surgery, and opined that the inguinal hernia was not caused or made worse by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. The VA examiner explained that a moderately large sized solid tumor in the left testes, and a simultaneous low platelet count, prompted careful biopsy and then radical orchiectomy due to size and indeterminate nature of the tumor. Final immunochemistry slides and interpretation took time to elucidate the benign nature. The examiner further noted that standard urology procedure for a solid tumor is removal of the entire testes for complete and accurate diagnosis that cannot be achieved on the day of surgery. Additionally, the VA examiner explained that post-operative loose tissue and hernia is a standard potential risk of inguinal region surgery. The potential for malignancy required radical, that is, more extensive surgery and, therefore, would present the potential for a hernia to develop in the days, weeks, and months post-operation. The October 2020 VA examiner has medical expertise and training, and based the medical opinion on accurate facts and data as documented in the record; therefore, the October 2020 VA medical opinion is of significant probative value. There is no competent medical opinion to the contrary of record. Although the Veteran believes that the inguinal hernia was the result of VA negligence or fault, or an event not reasonably foreseeable, as a layperson without relevant medical qualifications, he is not competent to render a medical opinion on the question of whether additional inguinal hernia disability was caused by VA fault or an event not reasonable foreseeable; therefore, the purported opinion is of no probative value, and is outweighed by the VA medical opinion and the consent form for the December 2016 radical orchiectomy surgery, signed by the Veteran and his physician, that specifically lists incisional hernia as a known risk of the treatment/procedure. Based on the foregoing, the Board finds that the weight of the evidence of record demonstrates that the inguinal hernia was not caused by VA fault or negligence or an event not reasonably foreseeable; therefore, the criteria for compensation under 38 U.S.C. § 1151 have not been met, and the appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for an inguinal hernia is remanded. The Veteran also asserts that the inguinal hernia is the result of Agent Orange exposure during service in Vietnam. The Veteran asserts he developed a growth on the testicles due to Agent Orange exposure, which was surgically removed and resulted in the inguinal hernia. See February 2021 representative brief, December 2019 VA Form 9. Review of the record shows that an October 2018 rating decision continued the denial of service connection for a left testicular condition, and the Veteran did not perfect an appeal of this issue. However, the Veteran continues to assert that the inguinal hernia is the result of Agent Orange exposure. The DD Form 214 shows that the Veteran is a recipient of the Vietnam Service Medal, Vietnam Campaign Medal, and the Combat Infantryman Badge. Additionally, the service personnel records indicate that he served in Vietnam from September 1966 to September 1967, so herbicide agent exposure is presumed. Upon a review of the record, it does not appear that the Veteran has been afforded a medical opinion regarding a direct nexus between the inguinal hernia and the in service herbicide agent exposure. A medical opinion would be helpful to assess whether the inguinal hernia is etiologically related to herbicide agent exposure during service. Service connection for an inguinal hernia is REMANDED for the following action: Obtain a VA medical opinion to address the claimed inguinal hernia. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. (Continued on the next page)   The VA examiner should offer the following opinion: Is it at least as likely as not that the currently diagnosed inguinal hernia was caused by or is etiologically related to herbicide agent exposure during service in Vietnam? E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Moore, Shanna 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.