Question:

Does delaying to file a claim affect a rating decision? During my active service in 1994, I had emergency surgery for a perforated appendix that also resulted in a re-sectioned small intestine. I was hospitalized for one week. In 2007, I retired with 25 years of service and everything was fine with me so I never filed a claim. In 2012, and  18 years after the surgery, I discovered a bump in my surgical scar that goes from mid abdomen to my hip bone. I went to a nearby Naval Hospital and was examined through all available tests, and doctors determined the bump was actually a foreign body (surgical sponge) that was left inside me from the 1994 surgery, and now another surgery was necessary for it's removal. In this second surgery, they took a large chunk of soft tissue out of my abdomen to remove the foreign body further weakening my abdominal wall so much that the placement of a mesh device was required to stabilize my abdomen. Incredible a s it sounds, after the second surgery was done I still didn't file a claim.  Some people suggested I should've sued after the discovery of the foreign body, but I never did considering I'm not the type of person who likes to litigate. I admit now I was severely mistaken, but it's not the end of the story. After the second surgery, I began to experience multiple gastrointestinal difficulties like abdominal pain and bloating, reflux problems, sore throat, and gastritis. The symptoms would come and go, but they recently increased in intensity. Well, I finally filed a claim with the assistance of a vet law attorney!! I included a substantial amount of documents from the surgeries and tests where physicians say my current conditions and the second surgery are related to my 1994 surgery and the foreign body that sat inside me for 18 years. I think this is substantial proof of service connection, but will this delay in filing weaken my case?

Jim's Reply:

You lay out a very difficult scenario. I have to comment that I'm a bit biased here as I was trained as a 91d20 surgical assistant during my active service and stayed in much that same field throughout my working career. The counting of sponges, surgical instruments and almost microscopic needles is an art form today and not given as much attention back in the era when your 1st surgery was done.  As a tech working in surgery, and later as a manager and vice president of those areas in hospitals where counts were required, one of my nightmares was a situation like yours. I encountered such twice in my career and I'm happy to tell you neither had happened on my watch. My non-legal layman's opinion is I think that since you had the surgery on active duty and in 1994, there won't be any successful tort claim. There are just too many barriers (time, Feres) for that to happen. I believe you have an excellent claim for VA disability benefits however. That you had the surgery while active establishes service connection so filing for the various disabling conditions as secondary to that event should be pretty straightforward. The timing of filing really has no effect other than setting the effective date. No benefits will accrue prior to filing the claim.