Citation Nr: 1303202 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-12 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2002) for additional disability to the urethra due to treatment at a VA facility. REPRESENTATION Appellant represented by: Kim Krummeck, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to May 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for damage to the urethra due to treatment at a VA facility. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had a catheter inserted when he was hospitalized by the VA in 1998. 2. There is no competent and probative medical evidence establishing that VA treatment resulted in additional disability due to 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. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional urethral disability due to treatment at a VA medical center have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a December 2005 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence are needed to substantiate a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for damage to the urethra. Duty to Assist The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include VA medical records, VA examination reports, and opinions from a private physician as well as two VA physicians. The Veteran's medical records and/or the claims folder were reviewed by VA physicians, and they provided opinions regarding his treatment at a VA facility and any resulting damage to the urethra. The opinions were rendered by medical professionals following a review of the pertinent medical records. The examiners laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinions of record are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As discussed above, the appellant was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by responding to notices, submitting evidence, and providing argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In pertinent part, 38 U.S.C.A. § 1151 provides: (a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title 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-- (1) 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 as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was- (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. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. See 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 a veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 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. See 38 C.F.R. § 3.361(c)(2). 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 additional disability or death; 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 or medical or surgical treatment without the veteran's informed consent. Determinations of 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 (2008). 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. See 38 C.F.R. § 3.361(d)(1). 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 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation under Chapter 31 of title 38, United States Code; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. The Veteran asserts compensation benefits under 38 U.S.C.A. § 1151 are warranted due to the treatment he received at a VA hospital in 1998. He states he was admitted to the hospital in March 1998, and the wrong size catheter was used. He reports that although the surgery that had been scheduled was cancelled, the catheter was left in. He claims he was later told by a urology nurse that the catheter should not have been left in. He adds that in 2005, his penile prosthesis was removed and a repair was done on the sphincter. He insists that the loss of his quality of life began with the insertion of the wrong size catheter in 1998. In June 2006, a VA physician reviewed all chart notes and VA medical records. He noted that a March 1998 discharge summary clearly documents that the placement of and the excessive duration of a catheter was responsible for extrusion on one of the cylinders of the Veteran's penile prosthesis that had been present for 23 years. Urethroscopy on admission at that time showed a small erosion of the penile urethra where the penile prosthesis had extruded into the urethra. Nevertheless, this event did not result in permanent damage to the urethra. It was also at this time that the Veteran had a long-standing left ischial pressure sore that had failed to heal and was treated with debridement and a gluteal muscle flap in April 1998. The VA physician added that between 1998 and February 2005, the Veteran continued to manage his urinary tract with spontaneous voiding into a condom catheter with preservation of one remaining prosthetic cylinder. He began developing increasingly higher residual urines, suggesting he was having increasing difficulty emptying his bladder. On February 2, 2005, he was found to have a scarred membranous urethra that required sphincterotomy to open the obstructed region of his urethra. He then developed a scrotal abscess that required incision and drainage several weeks later. This was followed by urine drainage from the scrotal wound. On April 1, 2005, it was determined he had disruption of his memberous urethra and had developed a urethrocutaneous fistula that required removal of the remaining penile prosthesis cylinder and placement of a permanent Foley catheter. The physician commented that the only improper care he could document involved the initial placement of the Foley catheter in 1998 that led to the extrusion of the prosthetic cylinder. It appears that the ensuing damage to the urethra that became apparent in 2005 was the result of multiple insults to the perineum and urethra due to pressure sores, infections and abscesses, and the need for such procedures as a sphincterotomy. He opined these factors are linked to the Veteran's primary disease processes, that is, a spinal cord injury and neurogenic bladder. He added the Veteran's situation was an extremely difficult condition to care for and complications such as these are common in this population of patients. The physician concluded that the damage the Veteran sustained to the urethra was not caused by or the result of carelessness, negligence, lack or proper skill or error in judgment on the part of VA personnel. In January 2010, a private physician stated he reviewed the Veteran's accounts of events in May 2005, the VA physician's June 2006 opinion, and VA records from 1998 and 2002 to 2006. He asserted the Veteran suffered a urethrocutaneous fistula that aggravated his underlying disability and rendered the management of his neurogenic bladder and incontinence difficult. He maintained this was a highly unusual, rather than a reasonably expected or foreseeable complication of routine treatment of the Veteran's underlying condition, and might have been further facilitated by the interpretation of diagnostic studies, and selection and delivery of care through the VA. He acknowledged that the delivery of urologic care in the setting of long-standing spinal cord injury is extremely difficult and associated with numerous complications. He insisted that this particular complication was likely avoidable. He noted that it seems to have been accepted that the prolonged presence of an indwelling catheter contributed to the extrusion of the prosthesis in May 1998. The Veteran was later noted to have a complicated infection that required the removal of his remaining prosthetic cylinder, with a related sinus tract. The subsequent sphincterotomy and perioperative catheter management appeared to have resulted in the progression to a urethrocutaneous fistula, that might increase difficulty managing his incontinence, hygiene and closure of the sinus. The physician added the fistula was an unforeseeable aggravation of the Veteran's underlying condition and was related to the delivery of care at the VA. The Veteran's claims folder and electronic medical records were reviewed by a VA physician in October 2011. The physician summarized the VA records. She noted that the Veteran was admitted in March 1998 for a skin flap procedure to cover a large, high grade ischial pressure ulcer. He entered the hospital with a condom catheter. It was noted on April 18, 1998 that he had urethral breakdown (at that point, the penile prosthesis was in place) and that they were changing to a condom catheter from a Foley, which had apparently been in place since around the time of the surgery on April 2, 1998. A note dated May 18, indicated the penile prosthesis came out of the meatus that day, and that it had been in place for 23 years. The etiology was unclear. No indications were reported of a urinary tract infection or local infection at the meatus. A note later that month indicates a urethroscopy showed a small area of erosion which was likely the site where the penile prosthesis had dislodged. There was no evidence of infection. The VA physician further noted that the next several years were quiescent with respect to the Veteran's bladder function and urethra. He did not appear to have urinary tract infections very often and continued to use a condom catheter. It was noted in January 2005 that the Veteran had a urinary tract infection with E. coli and yeast. His scrotum was erythematous and edematous. A cystoscopy that month revealed a urethral stricture with significant improvement after sphincterotomy. It was also indicated that the semirigid penile prosthesis was removed intact. The Veteran required incision and drainage of a scrotal yeast abscess and had epididymal orchitis treated during the hospitalization. The notes also describe that the Veteran had a cutaneo-urethral fistula that was described as healed at a visit in August 2005. The VA physician opined it was less likely than not that the urethra and scrotum were permanently damaged by the VA treatment in 1998 and less likely than not that there was permanent aggravation of the Veteran's overall disability by that treatment. She stated that the use of a Foley catheter for approximately one moth after a perineal skin flap surgery does not seem to be unusual or beneath the standard of care in this complex situation. The notes do not suggest the Veteran had any permanent sequelae other than the loss of one of the elements of the penile prosthesis which became dislodged without a clear explanation. It does not appear that the Veteran had a uretero-cutaneous fistula in 1998, but rather that complication appeared about seven years later. She added the notes from 1998 suggested comprehensive and competent care of a patient with ongoing complex problems related to his paralysis, and do not suggest carelessness, negligence lack of proper skill or error in judgment on the part of the VA. The Board acknowledges the Veteran's assertions that the treatment he received from the VA resulted in additional disability to the urethra. In addition, a private physician states that the treatment in 1998 ultimately led to a sphincterotomy that progressed to a urethrocutaneous fistula. Initially, the Board observes that the opinion of the VA physician in June 2006 specifically addressed this concern of the private physician. He found that the damage to the urethra that only became apparent in 2005 was associated with the Veteran's underlying spinal cord injury and neurogenic bladder. Similarly, the VA physician noted in October 2011 that VA records from July 2011 contained no mention of a fistula, and that the Veteran had not had any urinary tract infections in the previous year. He was using a condom catheter without difficulty. She also observed that the fistula did not appear until approximately seven years from the treatment in 1998. The Board finds these opinions to be of greater probative weight in determining whether additional disability exists following the catheter insertion in 1998 because of their specific identification of clinical findings following that care and their detailed conclusion. The preponderance of the competent and probative medical evidence demonstrates that the Veteran did not have increased disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or an event not reasonably foreseeable. The Board concludes that the medical findings of the VA physicians are of greater probative value than the conclusion of the private physician, or the Veteran's allegations of additional disability. Accordingly, entitlement to the benefits sought is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for additional damage to the urethra due to treatment at a VA facility are denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs