Citation Nr: 0006220 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-13 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability as a result of surgical treatment by the Department of Veterans Affairs in May 1995. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from October 1942 to October 1945. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in July 1998 by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran filed a notice of disagreement in July 1998. A statement of the case was furnished in August 1998. The veteran filed his substantive appeal in August 1998. FINDING OF FACT The claims file does not include medical evidence suggesting that the proximate cause of any additional disability of the abdomen following VA surgery in May 1995 was negligence or other fault on VA's part. CONCLUSION OF LAW The veteran's claim of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability as a result of VA surgery in May 1995 is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Title 38, United States Code, Section 1151 provides that, where a veteran suffers an injury or an aggravation of an injury resulting in additional disability by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the additional disability is carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or the proximate cause of additional disability was an event which was not reasonably foreseeable, compensation shall be awarded in the same manner as if such additional disability were service connected. The requirement to show that the proximate cause of the additional disability was fault on VA's part or an event which was not reasonably foreseeable was added by amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204 and applies to claims for compensation under 38 U.S.C.A. § 1151 which were filed on or after October 1, 1997. VAOPGCPREC 40-97, 63 Fed. Reg. 31263 (1998). As the veteran filed his claim after October 1, 1997, the amendments to the law apply in his case. A person who submits a claim for VA benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). In a case under the law prior to the amendments, in which fault was not at issue, the United States Court of Appeals for Veterans Claims (Court) held that there were three requirements to establish a well-grounded claim under the provisions of 38 U.S.C.A. § 1151. First, there must be medical evidence of a current disability. Second, there must be medical evidence, or, in certain circumstances, lay evidence, of incurrence of an injury or aggravation of an injury as the result of VA hospitalization or medical or surgical treatment. Third, there must be medical evidence of a nexus between that asserted injury or disease and the current disability. Jones v. West, 12 Vet. App. 460,464 (1999). As noted above, the current case is governed by the amended version of 38 U.S.C.A. § 1151 which requires a showing of VA fault or negligence. The veteran's contention is that there was fault or negligence on the part of VA medical personnel who performed a surgical procedure in May 1995. The Board finds that such a question is clearly one of a medical nature and therefore requires medical evidence. In any case where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required for the claim to be well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A claimant cannot meet this burden simply by presenting lay testimony, because laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). In the veteran's case, the record discloses that, in late May 1995, at a VA medical center, he underwent a cholecystectomy for symptomatic gallstones, repair of an incisional hernia, and repair of a colotomy. In early July 1995, he underwent incision and drainage of a subcutaneous and intra-abdominal abscess involving Marlex mesh closure of a midline wound; there were no complications of the procedure. In mid-July 1995, at a VA muscles examination, the examiner noted that the veteran had been admitted to the VA medical center in May 1995 with cholelithiasis, and, after a cholecystectomy, his postoperative course was complicated by surgical site infection, but he was currently doing well and being readied for discharge from the hospital. VA treatment records also disclose that, in September 1997, chronic abdominal mesh infection was found. In October 1997, it was noted that an abdominal wound had been debrided two weeks earlier. In November 1997, it was noted that the veteran had a right inguinal hernia. In January 1998, at a VA general surgery clinic, it was noted that the veteran had a large incisional hernia from the previous cholecystectomy. In November 1997, the veteran asserted a claim under the provisions of 38 U.S.C.A. § 1151 "for complications (surgery not healing, infection) due to surgery for hernia" in May 1995. Assuming for the sake of argument, but without so deciding, that additional abdominal disability exists which was a result of VA surgical treatment in May 1995, the question of whether the VA surgeon was careless, negligent, lacked proper skill, or made an error in judgment in performing the cholecystectomy in May 1995 involves a question of medical judgment. However, no medical evidence has been submitted in any way suggesting that the VA surgeon in May 1995 breached the standard of care reasonably expected of a surgeon performing a cholecystectomy or was at fault for the complications of infection and recurrent hernia. In the absence of any medical evidence to support the claim, the Board must conclude that the claim is not well grounded. 38 U.S.C.A. § 5107(a). Again, the Board emphasizes that the veteran, as a layman, is not qualified to offer an opinion on a question requiring medical judgment, and so his statement does not serve to make his claim well grounded. Espiritu. The Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claim for compensation under 38 U.S.C.A. § 1151 "plausible." See generally McKnight v. Gober, 131 F.3d 1483, 1484-5 (Fed. Cir. 1997). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for compensation under the provisions of 38 U.S.C.A. § 1151. Robinette v. Brown, 8 Vet. App. 69, 77- 78 (1995). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals