Citation Nr: 25002014 Decision Date: 02/11/25 Archive Date: 02/11/25 DOCKET NO. 14-20 255A DATE: February 11, 2025 ORDER Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residuals of a hernia operation is granted. FINDING OF FACT The Veteran's residuals of a hernia operation, namely left-sided numbness inclusive of left sural sensory polyneuropathy, is the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria are met for entitlement to benefits under 38 U.S.C. § 1151 for residuals of a hernia operation. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1975 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Procedural History By way of procedural history, the Veteran filed a claim for VA compensation benefits under 38 U.S.C. § 1151 in August 2011, contending that he began experience numbness in his left groin area following a 2008 hernia operation. The RO denied the claim in a January 2012 rating decision, and the Veteran ultimately appealed to the Board in June 2014. See VA Form 9. In an April 2018 decision, the Board denied the claim. The Veteran appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In October 2018, the parties filed a Joint Motion for Remand (JMR), granted by the Court in an Order that same month, vacating the Board's decision to the extent it had denied this claim, and remanding this claim back to the Board for still more development and readjudication in compliance with directives specified in the JMR. In May 2019, the Board, remanded this claim back to the Agency of Original Jurisdiction (AOJ) to comply with the JMR and more specifically, to obtain a medical opinion with an adequate rationale concerning whether the Veteran has an "additional disability" as a result of his September 2008 hernia surgery. After still more subsequent remands for even more development of this claim, the Board issued another decision in July 2022 again determining the residuals of the Veteran's September 2008 hernia repair surgery, specifically nerve damage, were not the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA, so again denying this claim. See August 2020 Medical Opinion; October 2020 VA Examination; November 2020 Board Remand; August 2021 VA Examination; October 2021 Board Remand; November 2021 Medical Opinion; March 2022 Medical Opinion; March 2022 Addendum Medical Opinion. The Veteran again appealed to the Court. In a June 2023 Memorandum Decision, the Court, a second time, vacated (set aside) the Board's decision denying this claim and remanded it back to the Board. The Court determined that the conflicting medical opinions upon which the Board relied in the July 2022 decision ultimately called into question the competency of both examiners. Specifically, the Court found that one VA examiner questioning the medical knowledge of a second VA examiner, notably the correct anatomical location of the sural nerve, indicates that at least one of the medical examiners based her medical opinion on an incorrect understanding of the human body. Most recently, in January 2024, the Board again remanded the claim to obtain yet another VA medical opinion in order to reconcile the conflicting medical evidence of record noted by the Court and address whether the Veteran has an additional disability as a result of his September 2008 hernia surgery. The requested opinion was obtained in February 2024, and the report provides the requested information, so the additional development directed to occur on remand has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Compensation under 38 U.S.C. § 1151 In order to warrant compensation under 38 U.S.C. § 1151, the Veteran must demonstrate that the VA treatment in question resulted in additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. To determine whether the Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). For claims received on or after October 1, 1997, as in the instant case, the Veteran must establish actual causation. To meet causation requirements based on additional disability, the evidence must show 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 that the proximate cause of the additional disability was an event that was not reasonably foreseeable. With regard to the former element, it must be shown that VA's care, treatment, or examination caused the Veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such VA care, treatment, or examination without the Veteran's informed consent. 38 C.F.R. § 3.361(c), (d). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The informed consent process must be appropriately documented in the health record. Signature consent is required for all diagnostic and therapeutic treatments or procedures that require anesthesia. 38 C.F.R. § 17.32(d). Whether the proximate cause of a Veteran's additional disability or death 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 U.S.C. § 17.32. 38 C.F.R. § 3.361(d)(2). To summarize, the criteria for entitlement to compensation under § 1151 consist of three elements: (a) additional disability; (b) a causal nexus between VA medical treatment and the additional disability; and (c) a finding of either fault on the part of VA medical providers or a finding of an unforeseen circumstance. Analysis Moving onto the facts of the Veteran's case, a September 2008 VA treatment note reflects that the Veteran presented to VA providers with a chief complaint of left inguinal hernia, causing pain, that he sought to have repaired. He subsequently underwent a left inguinal herniorrhaphy with Ethicon plug and mesh ("hernia repair") in September 2008. Shortly thereafter, in November 2008, the Veteran reported left-sided weakness of the upper and lower extremities, with numbness radiating from his chest down to his left lower leg, as well as headaches. It was noted that he experienced slightly weaker handgrip and cold things felt hot. Later that month, he also complained of numbness at the site of the hernia repair. The Veteran was ultimately diagnosed with left ilioinguinal neuropathy and left sural sensory polyneuropathy. See 08/11/2021, C&P Exam, Peripheral Nerves Conditions, p. 2. He contends that these two separate nerve conditions were caused by his September 2008 hernia repair. The Veteran's counsel contends the two submitted private treatment providers' opinions attribute the Veteran's conditions to his September 2008 surgery. Both opinions are provided by the same medical practice; one from Dr. C. and other from APRN B. Dr. C.'s opinion concurs with a left ilioinguinal neuropathy diagnosis but offers no nexus opinion supported by rationale regarding the condition's etiology. Similarly, APRN B. offers no independent diagnosis concerning ilioinguinal neuropathy and offers no opinion (independent or otherwise) concerning the etiology of the ilioinguinal neuropathy. See January 2019 and February 2019 Private Medical Records. The Board acknowledges that there are complexities regarding the Veteran's condition which resulted in VA examinations and opinions being obtained in October 2011, August 2020, October 2020, August 2021, November 2021, March 2022, and February 2024. As previously discussed in the prior Court and Board decisions in this case, the VA opinions have varying levels of probative value. While the VA and private opinions help establish a chronological relationship between the Veteran's conditions and the September 2008 hernia repair, they are inadequate alone to establish either the requisite causal nexus or the required finding of fault or unforeseen circumstance. However, the Board finds that taken together, the evidence of record demonstrates the Veteran had additional disability following his VA September 2008 hernia repair; specifically left ilioinguinal neuropathy and left sural sensory polyneuropathy. The crux of the issue remaining then, is whether the proximate cause of one or both additional disabilities was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. Put more simply, the question is essentially whether there is a finding of either fault on the part of VA medical providers or a finding of an unforeseen circumstance. Regarding the Veteran's post-operation diagnosis of left ilioinguinal neuropathy, the Board finds that this complication was reasonably foreseeable. Significantly, the September 2008 informed consent that the Veteran signed and acknowledged prior to his procedure specifically included the known risk of injury to the femoral vein or ilioinguinal nerve. See also September 2008 Surgery Immediate Pre-Op Assessment; September 2008 Nursing Operating Room Patient Assessment and Plan of Care; September 2008 Surgery Brief Operative Note. Therefore, the Board finds that the VA furnished the treatment with the Veteran's informed consent. Additionally, the post-operative notes following the Veteran's hernia repair procedure as well as follow-up notes from physicians and nursing staff were silent for any surgery complications. Although the Veteran asserts that there was an error in the surgery, there is no evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that the left ilioinguinal neuropathy was due to an event not reasonably foreseeable. Thus, the Board finds the evidence is persuasively against finding that this additional disability was proximately caused by either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (b) an event not reasonably foreseeable. 38 U.S.C. §1151; 38 C.F.R. §3.361. On the contrary, the Board finds that the Veteran's subsequent left-sided numbness, to include left sural sensory polyneuropathy, was an event that was not reasonably foreseeable, so VA compensation benefits under 38 U.S.C. § 1151 are warranted. The Board again finds the post-operative notes following the Veteran's hernia repair procedure as well as follow-up notes from physicians and nursing staff were silent for any surgery complications. However, only a month later, the Veteran reported left-sided weakness of the upper and lower extremities, with numbness radiating from his chest down to his left lower leg, as well as headaches. After reporting these symptoms to his treating physician, he was transferred to the hospital to rule out a possible hemorrhagic cerebrovascular accident (CVA). Following discharge from the hospital, he continued to experience left-side numbness and headaches, but results from MRI brain imaging and carotids were negative. A June 2009 treatment record shows that he continued to experience hypoesthesia with numbness on the left side and testing was conducted to rule out peripheral neuropathy and lumbosacral radiculopathy. Ultimately, a left extremity EMG showed sural sensory polyneuropathy. The Board notes that unlike the known risk of injury to the ilioinguinal nerve, the Veteran was not aware of possible injury to the sural nerve. Because of its sudden onset, the Veteran's treating physicians considered cerebral vascular events as well as radiculopathy, however none have been found. Injuries resulting from acts purely coincident with VA hospital care, treatment, or examination are not entitled to compensation. See Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). But the evidence here points to more than mere coincidence, as within a month of surgery, the Veteran experienced numbness in the entire left side of his body (not just the left lower extremity) due to what has been diagnosed as left sural nerve injury. See generally August 2021 VA exam and opinion, January 2018 and February 2019 private opinions. The Board acknowledges it is no medical expert and recognizing such, has sought seven VA medical opinions of record since 2011 to assist in adjudicating the Veteran's claims. Here, concerning etiology, the Board could again remand to obtain an adequate VA medical opinion, but the Board will not remand the matter simply to develop negative evidence against the claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that, because VA may not develop negative evidence, it "must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose"). As the evidence establishes that the Veteran experiences additional disability, namely left-sided numbness, that was not reasonably foreseeable (or an unforeseen circumstance) as a result of VA surgery/treatment, entitlement to compensation under 38 U.S.C. § 1151 is granted. As the claim qualifies under the "events not reasonably foreseeable" provision of 38 C.F.R. § 3.361(d)(2), the Board need not address whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Colleen M. Glaser-Allen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, C. 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.