Citation Nr: 1318861 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-19 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a urinary disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1962. This case comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), that denied the benefits sought on appeal. In November 2010, the Veteran testified at the RO before the undersigned, who was authorized to conduct a hearing in support of the appeal under the provisions of 38 U.S.C.A. § 7107(c), (e)(2). A transcript (Tr.) of the hearing has been associated with the claims file. In October 2012, the Board remanded the appeal for additional evidentiary development. As discussed in further detail below, the Board finds that there has been substantial compliance with its prior remand directives. As such, appellate review may now proceed. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's Remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As a final introductory matter, the Board acknowledges that in April 2013 the Veteran submitted additional argument and copies of VA and private medical records in connection with his appeal. That additional lay and clinical evidence was submitted directly to the Board, without a waiver of review by the agency of original jurisdiction (AOJ). However, the Board finds such a waiver to be unnecessary in this instance, given that the newly received evidence is either cumulative or duplicative of the assertions and clinical records previously associated with the Veteran's claims file. See 38 C.F.R. § 20.1304(c) (2012). The Board further observes that while the Veteran has since submitted another written statement, received in May 2013, AOJ review of that lay evidence has been explicitly waived. In any event, the Board notes that while not applicable in the instant case, there has been a change of policy for substantive appeals filed on or after February 2, 2013. For all such recent appeals, the provisions of § 501 of the Honoring America's Veterans Act, Public Law No. 112-154, 126 Stat. 1165, amended 38 U.S.C.A. § 7105 allow for the automatic waiver of initial review by the AOJ unless the claimant or claimant's representative expressly requests in writing that such review be undertaken. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. On August 9, 2006, the Veteran was admitted to the Bay Pines, Florida, VA Medical Center (VAMC), where he underwent a cystoscopy with transurethral resection of the prostate (TURP). The surgery was performed with the Veteran's informed consent and did not result in any immediate postoperative complications. 2. The evidence of record does not establish that the Veteran incurred any additional disability as a result of hospital care, medical or surgical treatment, or examination furnished by the VAMC in connection with his August 9, 2006, cystoscopy with TURP. CONCLUSION OF LAW The criteria for entitlement to VA benefits for a urinary disability pursuant to 38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Requirements The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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) (2012). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). Relevant to the Veteran's 38 U.S.C.A. § 1151 claim, the only issue decided herein, VCAA notice was provided in letters mailed in August 2007 and December 2008. Those notice letters specifically advised the Veteran of the evidence needed to substantiate his claim for compensation for a urinary disability under the provisions of 38 U.S.C.A. § 1151. In addition, the December 2008 letter described how VA assigns a disability rating and an effective date, thereby satisfying the heightened VCAA requirements set forth in Dingess. The Board acknowledges that the December 2008 notice letter was mailed to the Veteran following the initial unfavorable adjudication of his 38 U.S.C.A. § 1151 claim. Significantly, however, that notice letter addressed the same threshold VCAA criteria as the earlier correspondence, which had been sent prior to the March 2008 rating decision. Moreover, while the second notice letter also covered the additional requirements under Dingess, which had not been previously addressed, those criteria have now been rendered effectively moot by the Board's decision to deny the Veteran's 38 U.S.C.A. § 1151 claim. Even if Dingess were for application, however, any prejudice arising from the late notice furnished in December 2008 has been effectively cured by the subsequent readjudications of the Veteran's claim in the May 2009 statement of the case (SOC) and the April 2013 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Each of those subsequent adjudications was predicated on a complete review of the existing record. Accordingly, the Board finds that any delay in VCAA notice has neither deprived the Veteran of effective participation in the processing of his 38 U.S.C.A. § 1151 claim nor affected the essential fairness of the decision. As such, no further development is required with respect to the duty to notify under 38 C.F.R. § 3.159(b). With respect to the duty to assist, the AOJ has obtained the Veteran's complete service treatment records, as well as relevant VA and private treatment records. Additionally, pursuant to the Board's February 2012 Remand, the AOJ has obtained copies of a July 2006 consent form, which the Veteran signed in advance of the surgery implicated this appeal. Significantly, the Veteran has not alerted VA to any additional missing records regarding his claim for 38 U.S.C.A. § 1151 benefits. Nor has the claims file otherwise suggested that pertinent records remain outstanding. Accordingly, the Board finds that further records development would unnecessarily burden VA resources without benefit to the Veteran and, thus, should not be undertaken. See Sondel v. West, 13 Vet. App. 213, 221 (1999). Similarly, the Board finds that an additional VA examination should not be undertaken in support of the Veteran's 38 U.S.C.A. § 1151 claim. Such an examination already has been conducted in accordance with the Board's February 2012 Remand. The Board recognizes that this examination yielded a medical opinion that is unfavorable to the Veteran's 38 U.S.C.A. § 1151 claim. Additionally, the Board acknowledges that the Veteran took issue with the examiner's findings in a recently submitted statement. See Veteran's handwritten statement, received in May 2013. Significantly, however, the Veteran has not expressly alleged that the underlying examination was inadequate to decide the specific issue on appeal. Nor has the record otherwise suggested that this was case. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Thus, while mindful of the Veteran's request for a new VA examination, the Board finds that there has been substantial compliance with its prior Remand directive such that no further examination is needed. The Board also finds that the AOJ has substantially complied with the remainder of the February 2012 Remand by undertaking the additional evidentiary development outlined above. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board is satisfied that there has been substantial, if not total, compliance with the terms of its April 2012 Remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet App. 97, 105 (2008) (discussing situations when it is acceptable, instead, to have 'substantial' compliance, even if not 'exact', 'total' or 'complete' compliance, per se). In further compliance with the Board's Remand, the Veteran's 38 U.S.C.A. § 1151 claim has been readjudicated in the aforementioned SSOC. The text of that document makes clear that the AOJ has considered the substantive additions to the claims file that have been made since the SOC. In this regard, the Board acknowledges that the SSOC does not expressly mention the Veteran's February 2013 submission of medical documentation in support of his claim. However, that submission, which consisted of copies of the Veteran's July 2006 signed consent form and his August 2006 postoperative treatment reports, was duplicative of evidence that was already of record. Indeed, the AOJ had previously obtained the Veteran's signed consent form in accordance with February 2012 Remand, while his postoperative treatment reports had been added to the claims file during the initial development of his appeal. In any event, the Board observes that "[t]here is a presumption of regularity that public officers perform their duties 'correctly, fairly, in good faith, and in accordance with law and governing regulations.'" Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)). Courts presume that, "'in the absence of clear evidence to the contrary,'" public officers have "'properly discharged their official duties,'" Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). Therefore, absent any showing to the contrary, the Board presumes the AOJ has met its obligation to consider all evidence added to the record since the previous adjudication of the Veteran's claim. See 38 C.F.R. § 19.31 (2012). Significantly, neither the Veteran nor his representative has alleged or shown that this particular duty has not been met. Thus, the presumption of regularity has not been rebutted and the Board concludes that there has been substantial compliance with its prior Remand directives, including its instruction to readjudicate the Veteran's claim in the April 2013 SSOC. See Stegall, 11 Vet. App. at 271. As a final matter regarding the duty to assist, the Board observes that the Veteran has had the opportunity to testify in support of his 38 U.S.C.A. § 1151 claim during his November 2010 Travel Board hearing. 38 C.F.R. § 20.700(a) (2012). The transcript of that proceeding reflects that the undersigned set forth the issue of 38 U.S.C.A. § 1151 benefits at the start of the hearing. The undersigned then focused on the elements necessary to substantiate the claim and sought to identify any further development that was required. Those actions satisfied the duties a Veterans Law Judge or an Acting Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by failing to fully explain the 38 U.S.C.A. § 1151 issue or by neglecting to suggest the submission of evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during his Travel Board hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied with respect to the 38 U.S.C.A. § 1151 claim and, thus, appellate review of that issue may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Entitlement to 38 U.S.C.A. § 1151 Compensation The Veteran, in written statements and testimony before the Board, contends that he sustained additional urinary disability as a consequence of an August 9, 2006, cystoscopy with TURP performed at the Bay Pines VAMC. As such, the Veteran maintains that he is entitled to VA disability benefits under 38 U.S.C.A. § 1151. This governing statute directs that a veteran who sustains a "qualifying additional disability" as a result of VA medical treatment or hospital care is to be afforded benefits "in the same manner as if such additional disability . . . were service-connected." 38 U.S.C.A. § 1151(a); see Roberson v. Shinseki, 607 F.3d 809, 813 (Fed. Cir. 2010). At the outset of its analysis, the Board observes that the provisions of 38 U.S.C.A. § 1151 were amended, effective October 1, 1997. As that amendment predates the Veteran's claim, as well as the VA treatment upon which it is predicated, only the current provisions of 38 U.S.C.A. § 1151 are for application. Those provisions make clear that compensation may only be awarded for a "qualifying additional disability" that was caused by improper VA treatment. In other words, the additional disability must consist of more than a mere continuance or natural progress of a disease or injury for which VA treatment furnished, unless VA's failure to timely diagnose and properly treat such disease or injury proximately caused the continuance or natural progress. Moreover, the additional disability must not have resulted from the Veteran's failure to follow medical instructions or otherwise flowed from his own "willful misconduct." 38 C.F.R. § 3.361 (2012). The term "willful misconduct" in this context refers to "an act involving conscious wrongdoing or known prohibited action" that is undertaken with "reckless disregard of its probable consequences." 38 C.F.R. § 3.1(n) (2012). The specific requirements of 38 U.S.C.A. § 1151 and its implementing regulations were addressed in a recent precedential decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). In that decision, the Federal Circuit observed that the question of whether a veteran has a "qualifying additional disability" is a factual matter that involves comparing his physical condition immediately prior to the beginning of the VA hospital care or medical treatment in which the claimed injury was sustained with his condition at the conclusion of such care or treatment. Id. citing 38 C.F.R. § 3.361(b). The Federal Circuit then elucidated a three-part test for determining 38 U.S.C.A. § 1151 eligibility: First, the putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C.A. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. 38 U.S.C.A. § 1151(a)(1). Finally, the "proximate cause" of the veteran's disability must be "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." 38 U.S.C.A. §§ 1151(a)(1)(A), 1151(a)(1)(B). The foregoing test underscores what the Federal Circuit identified as the "two causation elements" inherent in 38 U.S.C.A. § 1151. In order to prevail under that statute, a veteran must not only show that he has an additional disability that was "caused by" the hospital care or medical treatment he received from VA, but also that such disability was "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." Viegas, supra, citing 38 U.S.C.A. § 1151(a)(1). Significantly, with respect to the first causation element, the Federal Circuit clarified that nothing in the plain language of 38 U.S.C.A. § 1151 requires a veteran's additional disability to be "directly" caused by the "actual provision" of medical care by VA personnel. Instead, the statute requires only a "causal connection," which includes additional disabilities that occur in a VA facility as a result of VA's negligence. Id. Nevertheless, the second causation element still requires more than mere evidence that a claimant received care or treatment and thereafter manifested an additional disability. Rather, there must be evidence that the proximate cause of the additional disability was "carelessness, negligence, lack of proper skill, error in judgment, or similarly instance of fault on the part of the [VA]," or "an event not reasonable foreseeable," or that there was a lack of informed consent. See id., 38 C.F.R. § 3.361(d)(1); see also 38 C.F.R. § 17.32 (outlining the specific criteria for obtaining and documenting the informed consent of patients, or those having the power to make future health-care decisions on their behalf). Here, as noted in the preceding section, the AOJ complied with the Board's February 2012 Remand by obtaining a copy of the consent form that the Veteran had signed in advance of his August 9, 2006 cystoscopy with TURP. See July 25, 2006, Request for Administration of Anesthesia and for Performance of Operations and other Procedures. Significantly, that consent form delineated the specific procedures to be performed by the Veteran's VA surgical team. The Veteran has since asserted that he would not have elected to undergo such procedures if he had known of the underlying risks. Tellingly, however, he has not alleged, nor has the record otherwise shown, that any aspect of the August 2006 surgery was performed without his advance knowledge or permission. Accordingly, the Board finds that the informed consent procedures set forth in 38 C.F.R. § 17.32 were adequately followed in this case. As such, the Veteran's claim for 38 U.S.C.A. § 1151 benefits turns on whether his August 2006 VA surgical-care providers proximately caused him to suffer additional disability and, if so, whether such disability was the providers' own fault or the result of an event not reasonably foreseeable. Such an 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 treatment. See 38 C.F.R. § 3.361(d)(2). In an effort to answer the above questions, the AOJ obtained copies of the Veteran's VA medical records dated prior to the August 9, 2006, cystoscopy with TURP, which revealed extensive complaints and treatment for nocturia, decreased urine flow, and related problems affecting his lower urinary tract. Such symptoms comported with a diagnosis of benign prostatic hyperplasia with obstruction of the urethra. The AOJ also obtained the specific VA records documenting the Veteran's August 9, 2006, surgery. Those records showed that after receiving general anesthesia, the Veteran had been placed into a dorsal lithotomy position so that his genitalia and perineum could be prepped and draped. He then underwent dilation and cystourethroscopic examination of the urethra. This exploratory procedure revealed a high posterior bladder neck with lateral lobe enlargement and approximately six grams of resectable tissue, but no evidence of stones or tumors. Subsequently, the obstructing tissue was removed from the bladder neck of the Veteran's urethra. This was followed by the additional removal of obstructing tissue between the resected bladder neck and verumontanum. During the above procedures, the Veteran's bleeding was described as "well-controlled" through the process of fulguration. There were no reports of other abnormalities throughout the remainder of the Veteran's surgery or in his postoperative recovery phase. Notwithstanding the lack of complications apparent from the contemporaneous surgery and postoperative records, the Veteran later contended that he experienced a substantial worsening of lower urinary tract symptoms following his August 2006 cystoscopy with TURP. See Hearing Tr. at 3-4. His contentions were supported by the private and VA medical records generated in the wake of that surgery. See Report from Florida Urology Specialists, dated January 5, 2012, Report from Riverwalk Professional Center; dated August 16, 2007; and Treatment Records from "Dr. F.," "Dr. C.," and "Dr. A.," dated from March 7, 2007, to February 20, 2009; see also Bay Pines VAMC Records dated from August 9, 2006, through July 23, 2007. Those private and VA records were replete with complaints of nocturia, interrupted urine streaming, urinary hesitancy, intermittent incomplete emptying of the bladder, and related symptoms, which were found to warrant clinical diagnoses of an atonic and neurogenic bladder, narrowing of the anterior urethra, and bladder neck contracture. Id. Moreover, those records showed that the Veteran's lower urinary tract pathology had necessitated additional cystoscopic and TURP procedures, as well as follow-up dilation and inspection of the urethra. In addition to directing the Board's attention to the foregoing evidence, the Veteran attempted to bolster his claim by alleging that the August 2006 surgery would not have transpired but for a "misdiagnosis" by his VA primary care provider. See Hearing Tr. at 4. In this regard, the Veteran maintained that his initial urinary symptoms had been caused by low oxygen saturation, due to sleep apnea, and had not been indicative of a prostate disability requiring surgical intervention. See Hearing Tr. at 5. The Veteran further maintained that the VA surgeon who had performed the August 2006 cystoscopy with TURP had admitted afterwards that the operation had "probably not [been] necessary." See Veteran Statement received on August 31, 2007. After considering the clinical records and lay assertions summarized above, the Board determined that such evidence was insufficient to establish whether the Veteran had an "qualifying additional disability," as contemplated by 38 U.S.C.A. § 1151(a). The Board further determined that, even if such additional disability were shown, it was unclear from the existing record whether the underlying cause was VA negligence, carelessness, lack of proper skill, error in judgment or similar instance of fault; or an event not reasonably foreseeable. To resolve these remaining uncertainties, the Board remanded the Veteran's claim for a VA etiological examination, which was conducted in February 2013 through the Disability Benefits Questionnaire (DBQ) process. During that examination, the Veteran offered his subjective impressions of his August 2006 cystoscopy with TURP. He also recounted his subsequent history of lower urinary tract symptoms and ensuing outpatient treatment and surgery. Concurrent clinical testing yielded findings of voiding dysfunction, which required the implantation of a catheter. Based upon those findings, the VA DBQ examiner confirmed the Veteran's prior diagnosis of atonic bladder and indicated that this condition appeared to have arisen in the wake of his nonservice-connected back problems. However, the examiner acknowledged that he did not have access to the Veteran's complete claims file and thus refrained from rendering a conclusive opinion as to the etiology of his urinary impairment. The record thereafter shows that in April 2013, the VA examiner who conducted the February 2013 VA examination reviewed the claims file and determined that it was less likely than not that the Veteran had incurred any additional urinary disability as a result of his August 2006 surgery. In support of this opinion, the VA examiner emphasized that the Veteran's nocturia, decreased urine flow, and related urinary symptoms were in existence prior to his surgery. Similarly, the examiner stressed that the Veteran's "anterior urethra was already narrowed at the time of the August 2006 procedure, and [that] the bladder neck was abnormal as well." As such, the examiner reasoned that "neither of those conditions could have been caused by the August 2006 procedure." That examiner further observed that "[c]onvincing, objective evidence showing [that the Veteran's] current urinary condition(s) were caused by, increased by, or a result of his August 2006 procedure is lacking." Significantly, the Veteran has not submitted any medical opinions contradicting the findings in the February 2013 report of VA examination and in the supplemental April 2013 etiological opinion. In addition, despite alleging that the August 2006 cystoscopy with TURP was deemed "unnecessary" by the very surgeon who had performed that operation, the Veteran has not furnished any written opinion from that VA healthcare provider. Nor has the Veteran produced any other medical opinion evidence in support of his 38 U.S.C.A. § 1151 claim or provided information that would enable VA to elicit such evidence on his behalf. Consequently, the Board finds that, to the extent such favorable evidence exists but has not been obtained, the responsibility lies with the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the absence of additional medical opinion evidence, the Board concludes that the findings of the above VA examiner are the most probative in this appeal. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001) (noting that, in its assessment of medical opinion evidence, the Board can favor some evidence over other evidence so long as it adequately explains its reasons for doing so). In reaching this conclusion, the Board has considered the criteria for weighing medical opinion evidence promulgated by the Court in Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Such criteria include whether the opining clinician 1) was fully informed of the pertinent factual premises (i.e., history) of the case; 2) provided a fully articulated opinion; and 3) supported that opinion with analysis. Id. (noting that while the Federal Rules of Evidence are not binding on the Veterans Court, nor on the Board, the rules on expert witness testimony provide useful guidance in assessing the probative weight of medical opinions). Nieves-Rodriguez, 22 Vet. App. at 302. With regard to the first prong of this three-part inquiry, the Board observes that the VA examiner demonstrated his familiarity with the pertinent facts of the case through his review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board recognizes that claims file review is not a strict prerequisite for medical opinions, even those authored by VA examiners. See Nieves-Rodriguez, 22 Vet. App. at 301. Nevertheless, the probative value assigned to a medical opinion may be reduced if the clinician fails to acknowledge relevant information, particularly that which is contrary to the opinion. Conversely, greater reliance may be placed on an opinion rendered by an clinician who fully accounts for all salient evidence, both clinical and lay. Indeed, it is the responsibility of each clinician to duly consider such competent evidence and reserve the Board's right to determine the overall weight of that evidence in the final adjudication of the claim. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see, also, Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). In this case, the VA examiner fulfilled his responsibility to consider all competent evidence of record by focusing not only on the pertinent clinical findings but also on the Veteran's own assertions regarding the nature and onset of his lower urinary tract symptoms. Indeed, by expressly referencing the Veteran's subjective history in the context of the examination report, the VA examiner displayed a familiarity with the relevant facts that went well beyond a cursory review of the claims file. See Nieves- Rodriguez, 22 Vet. App. at 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Moreover, the Board considers it significant that the findings of the VA examiner constitute the most recent medical opinion evidence of record. Accordingly, the Board presumes that the examiner took into account the most up-to-date contents in the claims file, which had been forwarded to him in his entirety. See Marsh v. Nicholson, 19 Vet. App. at 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). This adds to the probative value of that examiner's report and etiological opinion. Furthermore, by accounting for the favorable lay evidence of record, the VA examiner demonstrated that his February 2013 report and April 2013 opinion were factually accurate, fully articulated, and sound, thereby comporting with the second element of Nieves-Rodriguez, supra. Id. at 305. That examiner's opinion also complied with the third Nieves-Rodriguez element by virtue of its robust supporting rationale, which effectively reconciled the pre- and post-surgical complaints and clinical findings of record. Id. Notwithstanding these attributes, the Board acknowledges that the VA examination report and etiological opinion were somewhat speculative regarding the underlying cause of the Veteran's lower urinary tract symptoms. Indeed, while positing that such symptoms could be associated with a nonservice-connected back condition, the VA examiner did not render any findings in this regard that were conclusive enough for the Board to deem probative. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (noting that an inherently speculative finding is of limited probative value). Nevertheless, with respect to the salient question at issue in this appeal, the VA examiner was unequivocal, opining that the Veteran had neither incurred nor aggravated any urinary disability as a result of his August 9, 2006 surgery. Accordingly, the Board finds that this portion of the VA DBQ examiner's opinion is worthy of reliance, given its compliance with the other Nieves-Rodriguez criteria, outlined above. In contrast, none of the requirements set forth in Nieves-Rodriguez was met by the VA surgeon's purported opinion that Veteran's August 2006 cystoscopy with TURP was "probably not necessary." As noted previously, that purported opinion was related by the Veteran, who is competent to report what his surgical treating provider told him in that regard. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the Board has no basis to question the credibility of the Veteran's account absent probative evidence to the contrary. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995) (indicating that the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Nevertheless, the Veteran has not alleged, and the record does not otherwise indicate, that this statement from the VA surgeon was informed by a review of the Veteran's pertinent medical history. See Nieves-Rodriguez, 22 Vet. App. at 301 (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Moreover, there is no evidence that the VA surgeon proffered any rationale or analysis in connection with finding that the August 2006 operation, which he himself had performed, was unwarranted. Id. at 302, 305. The VA surgeon's purported statement was also inherently speculative, which further limits its probative value. See Tirpak, supra. As such, that surgeon's statement, as relayed by the Veteran, cannot be afforded the same evidentiary weight as the VA examiner's report and etiological opinion. Id. In any event, the Board observes that the VA surgeon's purported statement did not actually address whether or not the Veteran had incurred an additional disability as a result of his August 2006 operation. Therefore, even assuming that such a statement was, in fact, rendered, it does not contradict the salient findings of the VA examiner. Nor does any of the other medical evidence of record. Accordingly, the Board has no basis to substitute its own judgment to reach a different medical conclusion. See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991). Having thus articulated its reasons for relying on the VA examiner's report and etiological opinion, the Board finds that the findings contained therein tilt the preponderance of the evidence against the Veteran's 38 U.S.C.A. § 1151 claim. As discussed, the VA examiner was explicit in finding that the Veteran's urinary problems had existed prior to his August 2006 surgery. The examiner was likewise unequivocal that no additional urinary disability had been incurred as a consequence of that August 2006 surgery. Therefore, absent any probative countervailing evidence, the Board finds that the Veteran does not have an "qualifying additional disability" and, thus, does not meet the threshold element for 38 U.S.C.A. § 1151 compensation outlined by the Federal Circuit in Viegas. In reaching this determination, the Board is cognizant of the Veteran's own complaints of additional urinary disability following his August 2006 cystoscopy with TURP. However, his assertions in this regard are inherently subjective in nature and have not been ascribed to an actual clinical diagnosis. Accordingly, the Board finds that, while the Veteran's symptoms of residual urinary impairment have been well-documented, such symptoms alone, without a diagnosed or identifiable underlying pathology, do not rise to the level of an additional qualifying disability for which 38 U.S.C.A. § 1151 benefits may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Even assuming, for the sake of argument, that the Veteran did have an additional urinary disability arising from his August 9, 2006, surgery, he would still need to establish that such disability was not the result of his own willful misconduct. 38 U.S.C.A. §§ 1151(a). The Veteran would then need to show that the two causation elements outlined in Viegas had been satisfied. 38 U.S.C.A. §§ 1151(a)(1),1151 (a)(1)(A), 1151(a)(1)(B). With respect to the first of these requirements, the Board acknowledges that there is no evidence that the Veteran committed any "willful misconduct" in connection with his August 9, 2006, surgery. 38 U.S.C.A. § 1151(a); 38 C.F.R. § 3.1(n). Therefore, the two-part question that remains is whether the Veteran's purported post-surgical urinary problems were caused by the underlying VA treatment and were the proximate result of fault on the part of VA or an event not reasonably foreseeable. The Board finds that neither of the above elements of causation has been met in this case. On the contrary, the VA examiner has expressly indicated that the Veteran's current symptoms of urinary impairment preexisted his surgery. In light of that uncontroverted medical opinion, the Board has no basis to conclude that such manifestations are causally connected to that VA operation, or to any other instance of hospital care, medical or surgical treatment, or examination rendered by VA or in a VA facility. See Viegas, supra; 38 U.S.C.A. § 1151(a)(1). Moreover, while the examiner declined to specifically address whether any current urinary disability is due to an event not reasonably foreseeable, neither the Veteran nor the other evidence of record has hinted that this is the case. To the contrary, the pre-surgical records obtained pursuant to the Board's Remand show that the operation was performed with the Veteran's informed consent. Furthermore, the Veteran's subsequent hospitalization records make clear that there were no complications, either during surgery or in the postoperative recovery phase. For the foregoing reasons, the Board finds that the VA examiner's opinion and the other pertinent evidence of record shows that the Veteran did not incur a "qualifying additional disability," which was both causally connected to his VA treatment and the proximate result of fault on the part of VA or an event not reasonably foreseeable. See Viegas, supra; 38 U.S.C.A. §§ 1151(a)(1)(A), 1151(a)(1)(B). In arriving at this conclusion, the Board has considered the Veteran's own assertions of a permanent additional urinary disability, as well as his theories of proximate causation by VA treatment. The Veteran is certainly competent to attest to urological symptoms, both historical and current, which are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Similarly, he is competent to report his perceptions of the VA surgical treatment that he received in August 2006. Id. Moreover, the Board considers the Veteran's assertions to be credible insofar as the symptoms and VA clinical treatment he describes are documented in his claims file. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (indicating that the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Those assertions are also internally consistent, which further enhances their credibility. Id. Nevertheless, while competent and credible to offer the above impressions, the Veteran has not demonstrated the expertise to render an opinion as to a complex medical matter, such as whether his current urological symptoms comport with a new clinical diagnosis, which arose in the wake of his August 2006 surgery and is etiologically related to improper VA treatment. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As such, the Veteran's lay assertions, standing alone, are insufficient to refute the VA examiner's findings, and the other evidence of record, which weighs against his claim. In summary, the Board finds that the preponderance of evidence does not support the Veteran's claim of entitlement to compensation for a urinary disability under the provisions of 38 U.S.C.A. § 1151. Accordingly, the benefit of the doubt doctrine is not for application and the claim must be denied. 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). (CONTINUED ON NEXT PAGE) ORDER Entitlement to VA benefits for a urinary disability under the provisions of 38 U.S.C.A. § 1151 is denied. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs