Citation Nr: 0704598 Decision Date: 02/16/07 Archive Date: 02/27/07 DOCKET NO. 03-36 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for methicillin-resistant staphylococcus aureus (MRSA) related disability. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for Klebsiella pneumonia related disability. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for renal disability. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for right shoulder disability. 5. Entitlement to compensation under 38 U.S.C.A. § 1151 for right hand disability. 6. Entitlement to compensation under 38 U.S.C.A. § 1151 for a disability characterized by ambulation impairment. 7. Entitlement to compensation under 38 U.S.C.A. § 1151 for a disability characterized by choking. 8. Entitlement to compensation under 38 U.S.C.A. § 1151 for a psychiatric disability to include major depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran served on active duty from August 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2002 decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran does not have an MRSA-related disability due to VA medical treatment administered September 3, 1999 to November 2, 1999. 2. The veteran does not have a disability related to Klebsiella pneumonia due to VA medical treatment administered September 3, 1999 to November 2, 1999. 3. The veteran does not have renal disability due to VA medical treatment administered September 3, 1999 to November 2, 1999. 4. VA medical treatment administered September 3, 1999 to November 2, 1999 did not result in additional right shoulder disability nor is the proximate cause carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital/medical treatment; or due to an event not reasonably foreseeable. 5. VA medical treatment administered September 3, 1999 to November 2, 1999 did not result in additional right hand disability nor is the proximate cause carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital/medical treatment; or due to an event not reasonably foreseeable. 6. The veteran does not have a disability characterized by ambulation impairment due to VA medical treatment administered September 3, 1999 to November 2, 1999. 7. The veteran does not have a disability characterized by choking due to VA medical treatment administered September 3, 1999 to November 2, 1999. 8. The veteran has additional psychiatric disability as a result of VA medical treatment administered September 3, 9199 to November 2, 1999, but the proximate cause of the disability was not 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. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for MRSA-related disability, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). 2. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for Klebsiella pneumonia related, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). 3. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for renal disability, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). 4. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for right shoulder disability, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). 5. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for right hand disability, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). 6. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a disability characterized by ambulation impairment, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). 7. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a disability characterized by choking, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). 8. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a psychiatric disability to include major depression, have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. § 3.361 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in July 2001 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After the statement of the case was issued, additional evidence was received, but the veteran has waived initial RO jurisdiction over that evidence. The claimant's pertinent VA medical treatment records and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination and a VA medical opinion was obtained. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Since the Board has concluded that the preponderance of the evidence is against the claims, any questions as to the appropriate effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Compensation 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. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. In addition, the proximate cause of the disability or death must be either 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 an event not reasonably foreseeable. 38 U.S.C.A. § 1151. Effective September 2, 2004, 38 C.F.R. § 3.361 was promulgated for claims filed as of October 1, 1997. Prior to that time, 38 C.F.R. § 3.358 is to be applied. In this case, the veteran's claim was received after October 1, 1997. Thus, 38 C.F.R. § 3.361 is for application. 38 C.F.R. § 3.361(b) states that to determine whether a veteran has an 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(c) states that claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. 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. 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 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 § 17.32 of this chapter. To establish that the provision of training and rehabilitation services or a CWT program proximately caused a veteran's additional disability or death, it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT program provided or authorized by VA proximately caused the disability or death. The veteran must have been participating in such training, services, or CWT program provided or authorized by VA as part of an approved rehabilitation program under 38 U.S.C. chapter 31 or as part of a CWT program under 38 U.S.C.§ 1718. It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized. 38 C.F.R. § 3.361(e) provides for Department employees and facilities. A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) whose day- to-day activities are subject to supervision by the Secretary of Veterans Affairs. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e) explains activities that are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. The following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a): (1) hospital care or medical services furnished under a contract made under 38 U.S.C. 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction 38 C.F.R. § 3.361(g) provides for benefits which are payable under 38 U.S.C. § 1151 for a veteran's death. Upon careful consideration of the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claims for compensation as permitted under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361. An August 1982 VA examination report indicated that the veteran had hydradenitis supperativa. In July 1983, the veteran was admitted by VA for hydradenitis of the axilla. In August 1983, the veteran was admitted by VA for reflex esophagitis secondary to a hiatal hernia. In October 1984, the veteran was seen for muscular strain syndrome, recurrent hydradenitis, and hypertension. The veteran continued treatment for these problems, to include right upper extremity/shoulder complaints. Also, in July 1985, the veteran was seen for gastroesophageal reflux. In October 1985, the veteran was seen for anxiety. He was prescribed Xanax. In December 1986, he was diagnosed as having major depression. The veteran continued to be seen for depression. A January 1996 esophagogastroduodenoscopy revealed prominent gastric folds in fundus and cardia on upper gastrointestinal series. In April 1997, the veteran was seen for osteoarthritis of the right shoulder. In a May 1997 rating decision, entitlement to pension benefits was granted based on a myriad of medical problems: coronary artery disease, chronic obstructive pulmonary disease (COPD), GERD and diverticulitis, right shoulder impingement syndrome, osteoarthritis, diabetes mellitus, hemorrhoids, sebaceous cyst, and obesity. The veteran continued to have gastrointestinal complaints and was treated for gastrointestinal disability. On September 3, 1999, the veteran was admitted by VA with diagnoses of esophageal reflux and hiatal hernia. He underwent a Nissen fundoplication via an open procedure. He had secondary diagnoses of hypertension, COPD, peripheral vascular disease (PVD), depression, alcohol abuse, joint pain, diverticula, and sinusitis. Postoperatively, the veteran was administered amphotericin B through the triple lumen catheter. A nurse discovered this was the case and discontinued the infusion, removed the clip, attached the tubing with stopclock for Foley catheter infusion, and called the physician. Thereafter, the surgical resident and nurse pulled all the lines and restarted them secondary to contamination. A Report of Special Incident Involving a Beneficiary was conducted. The Board of Investigation concluded that the veteran was not harmed by this serious medication error. The hospitalization report also showed that the veteran had to be intubated for a prolonged period. By September 8, 1999, it was noted that the veteran's renal function was worsening and he went into acute renal failure. He also developed sepsis. On September 11, 1999, the veteran underwent an exploratory laparotomy, irrigation and drainage of the upper abdomen, placement of a gastrostomy tube in a Witzel fashion, placement of a T type jejunostomy tube, reinforcement of a fundoplication, and an omental patch of fundoplication site. There were no apparent complications. Aggressive blood and fluid resuscitation were continued. Thereafter, the veteran showed impairment. On September 20, 1999, the veteran was prepared for a tracheostomy due to respiratory failure. On September 21, 1999, the veteran had difficulty swallowing for three days. He had pain in his throat as well as hoarseness. By September 23, 1999, it was noted that the renal failure was resolving. On September 26, 1999, it was noted that the veteran had Klebsiella pneumonia. On September 29, 1999, the veteran reported that he had right arm weakness and numbness in the right leg. It was noted that he had abdominal dehiscence neuropathy. The veteran underwent a fluoroscopic placement of NG tube and abdominal wound debridement. There were no complications. By October 1, 1999, the veteran's renal functioning was stable. On October 4, 1999, the veteran underwent a repair of fascial dehiscence with Marlex mesh. It was noted that after the veteran underwent the open Nissen repair, he had a rather complicated hospital course, including, but not limited to, a fascial dehiscence. This was managed non-operatively because the wound appeared to be infected. In addition, there appeared to be some small bowel exposed at the inferior portion of the wound. This dehiscence continued to increase and it was decided to take the veteran to the operating room for repair. On October 8, 1999, the veteran was extubated. The hospitalization reports also reflect that the veteran reported shoulder pain. On October 19, 1999, the veteran had a Rehabilitation Medicine Consultation. The veteran was able to take a few steps, but was primarily wheelchair-bound. Long-term rehabilitation was recommended. The veteran was discharged on November 2, 1999. In February 2000, the veteran's claim was received. The veteran maintained that he was admitted by VA for a hernia repair. However, it did not go well and he was in a coma for over a month and awoke with multiple disabilities, as listed on the front page of this decision. In September 2001, the veteran was afforded a VA psychiatric examination. At that time, the veteran reported that he had been depressed since 1991. The veteran related that at that time, he was treated for both mental and alcohol abuse problems. The Axis I diagnosis was major depressive disorder. The Axis III diagnoses were chronic pain, abdominal/gastrointestinal impairment from abdominal wound complications. In November 2001, the veteran was afforded another VA examination. A review of the claims file was conducted. Prior to the September 1999 surgical procedures, the veteran indicated that he had had no trouble with his right arm, but when he awoke, he had pain in his right shoulder with decreased range of motion as well as numbness in the thumb and first three fingers of the hand. The veteran related that he was a professional contractor for 25 years. Evaluation of the right shoulder to include review of a magnetic resonance imaging (MRI) which showed a partial thickness tear involving the articular surface of the distal portion of the supraspinatus tendon at its insertion of the humeral head. Additionally, there was an abnormal signal identified in the more proximal portions of the tendon consistent with inter-substance edema. The veteran also exhibited decreased range of motion. It was noted that the veteran had been strapped during surgery. It was also noted that the veteran received amphotericin B through the wrong port. The veteran stated that due to his large size, he believed that he was dropped from the table which was the onset of his right shoulder difficulties. A physical examination was conducted. It was noted that the veteran was morbidly obese. The diagnoses were rotator cuff by MRI, diabetic sensory motor peripheral neuropathy, sensory symptoms consistent with carpal tunnel syndrome of the right hand, and decreased range of motion consistent with encapsulates. The examiner stated that she found no evidence that the veteran was dropped, therefore, she thought it was unlikely that this was the cause of the veteran's additional disability. In addition, in reviewing the hospital chart, a notation dated January 14, 1985 indicated that the veteran reported with pain in his arm, a constant dull ache. On examination, he was reported to have a decreased pin prick in the right shoulder. The assessment noted that the veteran had right tender palpation with reproduction of shoulder and neck pain, while the left was mildly tender. His range of motion at that time was full. The assessment was right shoulder and neck pain. The most likely diagnosis was recurrent hidradenitis. It was noted that in April 2000, the veteran was diagnosed with polyneuropathy without evidence of right brachial plexopathy. In July 2002, the veteran's claims file was returned to the VA psychiatric examiner. With regard to the question of "was the proximate cause of the additional psychiatric disability the result of carelessness, negligence, lack of proper skill, error on judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical treatment, or surgical treatment," the examiner responded that he was unable to answer that question due to lack of the appropriate professional background to evaluate the surgical technique and lack of any report of negligence. With regard to the question of was the event "not reasonably foreseeable," the examiner opined that the additional psychiatric disability, i.e., an increase in depressive symptoms, was a reasonable consequence of the veteran's serious medical condition which he encountered in September 1999. The long hospitalization was traumatic for the veteran and his wife. The examiner indicated that it would be inappropriate to estimate the veteran's global assessment of functioning (GAF) prior to the September 1999 surgery, as there was no GAF of record. The examiner stated that the veteran's increased manifestations were due to the surgery. In November 2002, a VA medical opinion was rendered. The examiner indicated that the veteran was morbidly obese. He had a history of alcohol abuse and had been in treatment since 1991. He had hypertension and hypercholesterolemia as well as COPD, insulin-dependent diabetes mellitus, and complications of that disorder to include decreased vision. He had mental and mood disorders with chronic depression and also had a nose deformity from a saw injury. He worked for 30 years as a carpenter and construction worker. He subsequently had problems with arthritis and degenerative joint disease and he had a history of pain in all of his joints, including his right shoulder, for which he was seen in April 1997. In addition, he had a history of chronic gastrointestinal complaints with diverticulosis. He had a 20 year history of a hiatal hernia and gastroesophageal reflux disease as well as gastritis. His gastroesophageal reflux disease was documented based on esophagogastroduodenoscopy finding and a 24 hour pH esophageal probe studies. In April 1996, he applied for pension benefits based on his right shoulder disability, gastroesophageal reflux disease, and diverticulosis. Thus, the Board notes, these disabilities were present when the veteran applied for pension benefits. Based on his gastroesophageal reflux disease, the veteran was admitted to the hospital on September 3, 1999. He underwent a laparoscopic Nissen fundoplication. This was converted to an open procedure due to difficulty with exposure apparently due to his obesity and enlarged liver, presumably secondary to chronic alcohol and fatty infiltration. There was an estimated one liter of blood loss due to bleeding from the short gastric vessels and the liver. Thus, the procedure was completed as an open procedure. The veteran was admitted to the hospital postoperatively. The postoperative course was complicated by a leak at the fundoplication site which was suspected due to his postoperative fluid requirements and sepsis. On September 11, 1999, the veteran was taken back into the operating room where a leak was discovered at the right lateral area of the fundoplication. Intraabdominal abscess were washed out and gastrostomy and jejunostomy tubes were placed. An omental patch was placed over the area of the leak to buttress the repair and intra abdominal drains were placed. The veteran also underwent bronchoscopy due to his persistent ventilator requirement and Klebsiella as well as MRSA were cultured consistent with Klebsiella and MRSA pneumonia. The veteran also sustained acute renal insufficiency possibly due to sepsis, hypotension, and dehydration. The veteran required dialysis twice and the insult to the kidneys appeared to resolve with that management. On September 21, 1999, the veteran underwent tracheostomy. On September 29, 1999, the veteran was taken back to the operating room for debridement of the abdominal wound and fascia. A nasogastric tube was placed fluoroscopically at that time. On October 4, 1999, the veteran was taken back to the operating room for a fascial dehiscence with exposed small bowel. A Marlex mesh repair was performed to the fascial edges. The veteran required one month of ventilatory support and survived his MRSA and Klebsiella pneumonia. His anuria resolved and he only required hemodialysis temporarily. The veteran received 8 units of packed red blood cells. His wound healed by secondary intention and he apparently had a skin graft across the granulation bed. There were 3 areas which did not epithelialize completely and required dressing changes. The veteran subsequently developed a ventral incisional hernia. It was unclear if the incisional hernia was repaired. The examiner noted that he was specifically requested to document whether were "actual disabilities or increase of previous disability associated with MRSA, kidney dysfunction, and abdominal/gastrointestinal impairment from abdominal wound and tracheotomy complications which were caused by hospital care, medical or surgical treatment, or examination" furnished by VA. The examiner stated that the MRSA appeared to have resolved and he had underlying COPD and congestive heart failure which may have contributed. His kidney dysfunction appeared to have resolved and the veteran no longer required dialysis. There was insufficient documentation to determine if the veteran had ongoing abdominal/gastrointestinal impairment since it was unclear whether or not the veteran had his ventral incisional hernia repaired and whether or not he had ongoing problems with gastroesophageal reflux disease or dysphasia. The examiner noted that he was also required to determine if the veteran had disabilities where were "increased or if disabilities are present, was the approximate cause the result of 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." The examiner was asked to consider if there was "no evidence of carelessness or neglect, lack of proper skill, error in judgment or similar instance of fault." The examiner stated that the complications the veteran suffered were known complications following laparoscopic and open fundoplication. The conversion to an open procedure was well documented in the surgical literature, as were complications from hepatic and short gastric hemorrhage and esophageal and gastric leak. The veteran's risk for these was apparently increased due, in part, to his morbid obesity and hepatomegaly. His intraabdominal sepsis ensued from his esophagogastric leak and, along with multiple re-operations, was a contributing factor to his fascial dehiscence and subsequent ventral incisional hernia. His morbid obesity may have been a contributing factor as well. His MRSA and Klebsiella pneumonia were complications of his prolonged ventilation. As noted, his transient decreased renal function was most likely due to ATN or stunned renal tubules secondary to sepsis, hypotension, and dehydration. These complications were all recognized complications of major abdominal surgery and therefore reasonably foreseeable as potential complications and generally covered in informed consent for this type of procedure. In December 2004, a private medical opinion was furnished by C.N.B., M.D. Dr. B. indicated that the veteran's residual ventral incisional hernia/wound was not the expected, predicted, usual, normal, or foreseen result of his endoscopic Nissen surgery and there were unforeseen errors committed by VA. With regard to renal function, Dr. B. stated that if the veteran's current renal function tests were not within normal limits, that it was his opinion that any potential current renal dysfunction was likely due to the unforeseen error, 60+ day hospitalization, anuria, dehydration, sepsis, multi- antibiotic administration because his claims file does not contain any other plausible cause. Dr. B. indicated that the veteran's surgery would normally be same day or few days in duration. However, the hospitalization lasted over 60 days and was discharged with 23 medications. Dr. B. indicated that the veteran's complications were not foreseen. He listed the complications to include: congestive heart failure, glucose intolerance, acute respiratory failure/ventilator dependent, renal failure with dehydration and anuria with dialysis, consolidative Klebsiella pneumonia, tracheostomy, gastrostomy, jejunostomy, NG tube, coma, hearing loss, 60 day hospitalization, pleural effusion with fluid management problems, hypotension, blood transfusions, anastomic leak with omental patch, emergent follow-up surgeries, abdominal debridement/fascial dehiscence/abscess/spontaneous bleeding, sepsis/MRSA, multi- antibiotic treatment, abdominal postoperative hernia with surgical Marlex Mesh correction attempt, drug misadministration. Dr. B. opined that the care provided to the veteran was poor, suboptimal, negligent, careless, error in judgment-type. He indicated that the vast majorities of patients do not experience the ventral's aforementioned complications following a routine normal error-free endoscopic Nissen procedure. The first error was either the choice of endoscopic surgery in a veteran of this body habitis or the actual surgical technique performed which may or may not have been done by an attending physician and/or may or may not have been done by an adequately supported resident surgeon. Dr. B. acknowledged that the complications were known, but he indicated that they would be expected to occur at exceedingly small rates (less than 50 percent) and therefore represent an aberration in care which were not reasonably foreseeable and were likely due to a cascade of multiple sequential/simultaneous errors in judgment/timing/types of treatment. Dr. B. indicated that the VA medical opinion did not give the expected occurrence rate for each complication or why each complication was not consented to by the veteran. At the outset, the Board notes that Dr. B. listed various complications of the veteran's surgical and other care provided by VA. He opined that the complications were essentially due to substandard care and VA negligence. Dr. B. listed the complications, as set forth above. Dr. B. did not address all of the veteran's claimed disabilities. Rather, he addressed certain medical problems not before the Board. The Board cannot accept the general statement that negligent care was provided to extend to all current disabilities. The reason the Board cannot do so is because Dr. B. very clearly addressed certain complications which he determined resulted from negligence and he addressed those matters. As he was specific regarding the residual disabilities, the Board is unable to conclude that any medical impairment not mentioned is among those caused, purportedly, by negligent care. Accordingly, VA also obtained a medical expert opinion in this case. Specifically, an independent medical expert opinion was sought by VA from a non-VA provider who is an Associate Professor of Medicine and which was provided in October 2006. The veteran's history was reviewed. The examiner was asked: was the likelihood that the veteran currently has disability involving MRSA, Klebsiella pneumonia, renal impairment, a disability characterized by ambulation impairment, and/or a disability characterized by choking due to VA medical treatment administered from September 1999 to November 1999. In his opinion, the veteran had no evidence of MRSA or Klebsiella pneumonia at the current time. The examiner indicated that there were no pulmonary function tests showing residual impairment due to the pneumonias. The examiner cited to a near normal Creatinine reading which showed no current renal impairment. Also, it was noted that during a recent 2005 hospitalization, the veteran exhibited peripheral neuropathy which was related to his diabetes which limited his ability to ambulate and which was not related to his treatment during hospitalization. Further, the examiner noted that there was no mention in the records subsequent to 1999 of any choking disorder and no record of a choking disorder. Thus, in sum, the physician determined that there was no additional disability involving MRSA, Klebsiella pneumonias, renal impairment, a disability characterized by ambulation impairment, and/or a disability characterized by choking due to the VA medical treatment rendered from September 3, 1999 to November 2, 1999. VA law and regulation require that the evidence must show that the additional disability is the result of VA hospital care, medical or surgical treatment and that the proximate cause of the additional disability must be either 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. Although the veteran contends that all of his alleged disabilities were the result of negligent VA treatment, he is not competent to make this assessment. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992) (lay persons are not competent to offer evidence that requires medical knowledge). However, there are competent medical opinions in this case. The medical opinions are probative evidence because they were based on a review of the record. See generally Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical expert established that the veteran does not currently have an MRSA-related disability, a disability related to Klebsiella pneumonia, or renal disability. Although Dr. B. listed these disabilities as immediate complications of the VA medical treatment administered September 3, 1999 to November 2, 1999, the MRSA, Klebsiella pneumonia, and renal failure resolved and the veteran no longer has any residuals. This opinion is supported by the November 2002 VA medical opinion. Thus, there is no additional disability. Dr. B provided no opinion regarding current residuals of MRSA or Klebsiella pneumonia. With regard to renal disability, Dr. B. indicated that if the veteran had renal disability, it was related to the VA surgery. Dr. B. speculated in his opinion that if the veteran's current renal function tests were not within normal limits, that it was his opinion that any potential current renal dysfunction was likely due to the unforeseen error, 60+ day hospitalization, anuria, dehydration, sepsis, multi- antibiotic administration. As established by the medical expert, the veteran does not have renal dysfunction/renal disability. Thus, there is no additional disability. With regard to the right shoulder, the veteran clearly had right shoulder disability prior to the VA treatment in question. The prior VA medical records are replete with medical findings of right shoulder disability. As noted, Dr. B. generally indicated that the care provided to the veteran was poor, suboptimal, negligent, careless, error in judgement-type. However, Dr. B. did not indicate that a right shoulder disability was one of the complications. He provided no medical opinion regarding whether the veteran had additional right shoulder disability or any right shoulder disability. Conversely, the November 2001 VA medical opinion noted that there was no additional right shoulder disability. Likewise, the VA medical opinion concluded that there was no additional right hand disability. Dr. B. also provided no opinion in with regard to any right hand disability or additional right hand disability. Thus, the VA medical opinion, which is competent medical evidence, is uncontradicted by any other competent medical opinion and is supported in the record. The medical expert opined that the veteran has peripheral neuropathy. He specified that the peripheral neuropathy is related to the veteran's diabetes, which limited his ability to ambulate, and which was not related to his treatment during hospitalization. Further, the medical expert noted that there was no mention in the records subsequent to 1999 of any choking disorder and no record of a choking disorder. Again, Dr. B. generally indicated that the care provided to the veteran was poor, suboptimal, negligent, careless, error in judgement-type. However, Dr. B. did not indicate that either a disability characterized by ambulation impairment or a disability characterized by choking were one of the complications of the VA treatment. He provided no medical opinion regarding whether the veteran has a disability characterized by ambulation impairment or a disability characterized by choking. Thus, the medical expert opinion, which is competent medical evidence, is uncontradicted by any other competent medical opinion and is supported in the record. With regard to the veteran's psychiatric disability to include major depression, the record shows that the veteran had psychiatric disability prior to the VA treatment in question. He was diagnosed as having major depression in the 1980's. The VA psychiatric examiner concluded that the veteran did in fact have additional psychiatric disability due to the VA treatment administered September 3, 1999 to November 2, 1999. However, the examiner was unable to state that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. With regard to the question of was the event "not reasonably foreseeable," the examiner opined that the additional psychiatric disability, i.e., an increased in depressive symptoms, was a reasonable consequence of the veteran's serious medical condition which he encountered in September 1999. Thus, the additional disability was not an event not reasonably foreseeable. Dr. B. did not indicate address psychiatric disability in his opinion. Thus, the VA examiner's opinion, which is competent medical evidence, is uncontradicted by any other competent medical opinion and is supported in the record. In sum, the veteran does not have an MRSA-related disability due to VA medical treatment administered September 3, 1999 to November 2, 1999. The veteran does not have a disability related to Klebsiella pneumonia due to VA medical treatment administered September 3, 1999 to November 2, 1999. The veteran does not have renal disability due to VA medical treatment administered September 3, 1999 to November 2, 1999. He does not have any of these disabilities, as established by the competent, probative medical evidence. Further, VA medical treatment administered September 3, 1999 to November 2, 1999 did not result in additional right shoulder disability or right hand disability nor is the proximate cause carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital/medical treatment; or due to an event not reasonably foreseeable. The November 2001 VA medical opinion determined that there was no evidence that the veteran was dropped so it was unlikely that this was the cause of the veteran's additional disability. There is no competent medical evidence showing that the VA medical treatment administered September 3, 1999 to November 2, 1999 resulted in any additional right shoulder or right hand disabilities. Also, the veteran has "a disability characterized by ambulation," he has peripheral neuropathy. However, the medical expert determined that it is due to diabetes and is not the result of the VA medical treatment administered September 3, 1999 to November 2, 1999. As established by the medical expert, the veteran does not have a disability characterized by choking due to VA medical treatment administered September 3, 1999 to November 2, 1999. The veteran has additional psychiatric disability as a result of VA medical treatment administered September 3, 1999 to November 2, 1999, but the proximate cause of the disability was not 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. Also, the additional disability was not due to an event not reasonably foreseeable. Accordingly, the criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 have not been met. In reaching this decision, the Board has considered the doctrine of doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation under 38 U.S.C.A. § 1151 for MRSA related disability is denied. Compensation under 38 U.S.C.A. § 1151 for Klebsiella pneumonia related disability is denied. Compensation under 38 U.S.C.A. § 1151 for renal disability is denied. Compensation under 38 U.S.C.A. § 1151 for right shoulder disability is denied. Compensation under 38 U.S.C.A. § 1151 for right hand disability is denied. Compensation under 38 U.S.C.A. § 1151 for a disability characterized by ambulation impairment is denied. Compensation under 38 U.S.C.A. § 1151 for a disability characterized by choking is denied. Compensation under 38 U.S.C.A. § 1151 for a psychiatric disability to include major depression is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs