Citation Nr: 1306779 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 05-40 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for transient ischemic attacks (TIAs). 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for urinary incontinence. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to March 1966. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2005 rating decision issued by the Regional Office (RO) in Philadelphia, Pennsylvania, that denied the benefits sought on appeal. The Board notes the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since July 2005. In July 2010, the Board remanded the case to the AMC for additional development. In May 2012, the Board again remanded the case for additional development, to include completion of development directed in the July 2010 remand. The AMC completed the additional development as directed, continued to deny the claims, and returned the case to the Board for additional appellate review. The Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and all relevant documents therein have been reviewed and considered by the AMC/RO. Any further development or adjudication of this matter should take into account this paperless claims file. The issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 for urinary incontinence is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The AMC/RO completed the additional development directed in the July 2010 remand by issuing the requisite notice to the Veteran, obtaining records maintained by the Social Security Administration, and arranging medical examinations as directed. 2. The AMC/RO complied with the May 2012 remand by arranging a medical review of the claims file as directed. 3. The preponderance of the evidence of record shows that VA medical treatment, to include medication prescribed, did not cause or contribute to the Veteran's TIAs. CONCLUSION OF LAW The criteria for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of TIAs have not been met. 38 U.S.C.A. §§ 1151, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.361(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by re-adjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, prior to issuance of the rating decision appealed, the Veteran was sent a letter in November 2003 that addressed the assistance provisions of the VCAA. The letter did not inform the Veteran of what was required to prove a claim under 38 U.S.C.A. § 1151. Hence, it was not content-compliant. A subsequent February 2010 AMC letter provided comprehensive VCAA notice to the Veteran for a §1151 claim. Neither that communication, nor a September 2010 letter that followed explained how disability evaluations and effective dates are assigned. However, as the instant claim denies a grant of service connection, no rating percentage or effective date will be assigned, and thus this notice deficiency is deemed moot. The Veteran has had a meaningful opportunity to participate in the decision on his claims at all stages of the process. Hence, the Board finds VA complied with the notice provisions of the VCAA. See Washington v. Nicholson, 21 Vet. App. 191 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159(c). The Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains VA treatment records, opinions from VA medical staff and VA examination reports, and records from the Social Security Administration. As noted in the Introduction, review of the Virtual claims file reveals that any records not in the paper file were considered by the AMC/RO while the case was on remand, as noted in the SSOCs of record. Thus, there is no need to seek a waiver from the Veteran or remand the case. See 38 C.F.R. § 20.1304. Neither the Veteran nor his representative asserts that there are additional records to be obtained. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Law and Regulation Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and the disability 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 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. 38 U.S.C.A. § 1151. 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, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; 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. 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). Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability 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; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. Id.; see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Analysis The Veteran asserted in his September 2003 claim that a medication prescribed by VA, Oxybutynin, for treatment of his urinary symptoms caused him to experience two TIAs. As a result, he seeks compensation for the residuals of that disability. A neurologist conducted a review of the claims file pursuant to the July 2010 Board remand. In an August 2010 examination report, the same examiner noted the Veteran's assertion that his TIAs were caused by his service-connected posttraumatic stress disorder (PTSD). The examiner noted the Veteran happened to be in the hospital at the time of his TIAs, and that TIAs are due to blood clots that form in the blood vessels, which would not be causally related to treatment for PTSD. The examiner did not address any potential relationship between the Veteran's TIAs and his use of Oxybutynin. Hence, the Board remanded the case in 2012 so the examiner could address that facet of the Veteran's claim. In September 2012, a VA examiner opined that there was less than a 50-percent probability that the Veteran's TIAs were caused by Oxybutynin prescribed him by VA for treatment for his genitourinary disorders. The examiner observed that at the time of the Veteran's initial November 2002 private workup for syncope, his physicians could not determine what caused his episodes of dizziness, headache, and lightheadedness. The records related to that treatment noted that the Veteran was started on Oxybutynin in July 2002 and that he stopped taking that drug in November 2002. The Veteran asked to be restarted on the drug one week later. The examiner referenced the September 2010 report wherein he noted TIAs are the result of impaired blood flow to an area of the brain, and that the Veteran had the cerebrovascular disease risk factors of hypertension, diabetes, cardiac disease, and obstructive sleep apnea. The examiner also noted that, while dizziness is a potential side effect of Oxybutynin, dizziness was also a potential side effect of a number of other medications the Veteran was taking at the time of the episode. The examiner observed the urology records noting that the Veteran had a reaction to Ditropan, which consisted of dizziness and disorientation. In November 2003, the Veteran started experiencing symptoms more characteristic of TIAs, although the initial workup was negative. A later MRI examination showed small vessel ischemia. The examiner noted that a 2007 entry in the Veteran's records that the Veteran had a TIA in 2003 that caused residual left-sided weakness was written by a medical resident rather than an attending physician. The examiner noted the entry was not consistent with the very definition of a TIA, which is transient. The examiner then noted that, as of 2012, the Veteran remained on Oxybutynin 5 mg twice a day. The Board finds the examiner's September 2012 negative opinion that the Veteran's hypertension, diabetes, cardiac disease, and obstructive sleep apnea, were the primary risk factors for his TIAs is supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical opinion must fully discuss reasons and bases for opinion). First, the Board notes the Veteran is not service connected for either hypertension, diabetes, cardiac disease, or obstructive sleep apnea. Second, as the examiner noted, the Veteran's treatment records note that he remains on Oxybutynin, and several other medications, to the current date. The Board may reasonably infer that the Veteran's care providers would not continue to maintain him on any medication deemed detrimental to his health. Further, there is no notation that the Veteran has objected to his continued use of Oxybutynin. In light of the above, the Board is constrained to find that the Veteran's TIAs were not due to any unforeseeable consequence, carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA from the treatment of his genitourinary disorders. 38 U.S.C.A. § 1151. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. See 38 U.S.C.A. § 5107(b). As the preponderance of the evidence is against the Veteran's claim, however, that doctrine is not applicable in the instant appeal. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001) and Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for TIAs is denied. REMAND The Veteran asserts that he developed urinary incontinence as a result of a September 2002 transurethral resection of prostate (TURP) performed by VA for treatment of urinary frequency. (Emphasis added). Initially, the Board notes that the medical records in the claims file do not include the Informed Consent that the Veteran signed in relation to that procedure. The September 2002 operation report notes the diagnosis for which the procedure was performed was bladder outlet obstruction. While the Veteran reported urinary frequency and urgency prior to the TURP, he did not complain of urinary incontinence. He carried a urinal in his car in case he had to stop and relieve himself. A January 2005 VA examination report reflects the examiner's opinion that the Veteran's symptoms were not caused by the TURP but were "unmasked" by the TURP. The examiner did not explain what was meant by the Veteran's symptoms being "unmasked"; if the TURP surgery aggravated an underlying urological disorder this could potentially form a basis for 38 U.S.C. § 1151 liability, if the other criteria for that benefit were satisfied. Further, the examiner did not address whether the Veteran had urinary incontinence prior to the TURP. The Board remanded for clarification. Unfortunately, the examiner who conducted the August 2010 review of the claims file did not provide the requested clarification. The examiner referenced a reported notation by the Veteran's physician that an implanted artificial urethral sphincter (AUS) may have been damaged during the TURP and opined that was a reasonably foreseeable consequence of the TURP. However, the Veteran's medical records show the AUS was inserted by a non-VA provider two years after the TURP. The October 2004 operation report related to the insertion of the AUS notes a diagnosis of stress urinary incontinence status post-TURP. When the AMC/RO returned the file to the examiner, he requested the file be referred to a urologist, as the issue being addressed is whether there was negligence. He declined further comment. The Veteran is service-connected for lower extremity neuropathy secondary to his prior hernia surgeries. The VA outpatient records contain numerous entries where it is noted that left inguinal nerve entrapment was the cause of lower extremity pathology. The AUS was removed in 2009 after it stopped functioning following the Veteran's involvement in a MVA. In an October 2009 VA entry related to treatment of the Veteran's chronic left inguinal pain, the examiner noted inguinal nerve entrapment, and that he was not surprised the Veteran noticed urinary leakage after the AUS was removed. The examiner did not indicate whether there was any relationship between the leakage and the inguinal nerve entrapment, but the entry appears to so imply. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will obtain a copy of the Informed Consent the Veteran signed prior to the September 2002 TURP. All actions to obtain the consent should be documented in the claims file. 2. After the above is complete, the AMC/RO will ask VHA to designate a urologist and, if deemed necessary, a neurologist, who has not previously reviewed the claims file, to conduct a thorough review of the claims file. A copy of this remand should also be provided to the examiner(s) who reviews the claims file. Ask the examiner to address the following questions: a) Was there an aggravation or increase in the Veteran's genitourinary symptoms due to the TURP procedure in September 2002? b) If so, is there at least a 50-percent probability that any increase in the Veteran's symptoms were due to either (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing such care or treatment; or, (b) was not a reasonably foreseeable consequence of the care or treatment provided? If the examiner answers the above questions in the negative, then he or she should opine whether there is at least a 50-percent probability the Veteran's urinary incontinence is causally related to his service-connected inguinal nerve entrapment? If not, is there at least a 50-percent probability the service-connected inguinal nerve entrapment has aggravated the urinary incontinence, that is, caused a permanent worsening beyond its natural progression? If so, the examiner is asked to specify the permanent, measurable increase in severity of the Veteran's urine incontinent symptoms due to the service-connected inguinal nerve entrapment. The examiner is asked to provide a full explanation for any opinion(s) rendered. 3. After completion of all of the above, the AMC/RO should re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with an SSOC. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs