Citation Nr: 1327273	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  10-31 848	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico



THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a bladder injury, claimed to have resulted from transurethral resection of the prostate (TURP) at a VA medical facility in April 2002.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from March 1957 to March 1959.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO).  This matter was previously before the Board in June 2012, when it was remanded for additional development.  In February 2013, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA); such opinion was received in May 2013.

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).


FINDING OF FACT

It is not shown that the Veteran has additional disability (claimed as residuals of a bladder injury) resulting from the TURP procedure by VA in April 2002.


CONCLUSION OF LAW

The criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 are not met with respect to residuals of a bladder injury claimed to be additional disability resulting from a procedure by VA in April 2002.  38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  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(a).  The VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for a benefit, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial determination on the matter.  A September 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  The letter did not inform the appellant of disability rating and effective date criteria, but the Board finds that this is harmless error with no prejudice to the Veteran in light of the facts that (1) the Veteran is assisted in this matter by an accredited Veterans Service Organization who has actual knowledge of such criteria and is presumed to have briefed the Veteran on information pertinent to this appeal, and (2) no disability ratings or effective dates will be assigned in connection with the Board's decision in this appeal (because entitlement to benefits is not found), rendering moot whether there was adequate notice regarding such assignments.

Records of the VA treatment at issue have been obtained along with pertinent private medical records proximate in time to the VA treatment at issue.  The Veteran was provided a VA examination addressing this matter in August 2012, in accordance with the Board's June 2012 remand directives.  Furthermore, to ensure every consideration in this medically complex matter, in February 2013 the Board sought an advisory medical opinion from the VHA.  As will be discussed in greater detail below, the Board finds the May 2013 VHA advisory opinion to be adequate with regard to providing the essential medical information sought in this case.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran was provided a copy of the VHA opinion, and was afforded opportunity to respond.

The Veteran has not identified any pertinent evidence or information that remains outstanding.  The Board observes that the Veteran has recently indicated (after the Board's most recent remand of this appeal) that he underwent a new TURP procedure at a private medical facility in June 2012.  He has not requested nor provided authorization for VA to obtain records of this procedure, nor is there any indication that such records could support the Veteran's claim (he has not identified them as containing pertinent information).  As discussed below, this appeal concerns whether any injury to the bladder in April 2002 led to new or worsened disability; significant probative evidence after April 2002 and prior to June 2012 clearly shows that the Veteran had a normal bladder with no residual disability.  The state of the Veteran's health in June 2012 is not necessarily relevant to this appeal concerning an alleged April 2002 injury, and the Veteran has presented no suggestion that any outstanding medical records present any etiological opinion or medical findings supportive of his claim.

The Board observes that it appears that the Veteran allowed the August 2012 VA examiner to review the June 2012 private medical report from the more recent TURP, and the August 2012 VA examiner noted that the document indicates normal findings for the bladder consistent with the evidence of record and the VA examiner's own conclusions.  The Veteran did not submit the private reports for inclusion in the record on appeal and has not requested that VA otherwise obtain copies of them.  Therefore, there is no suggestion of record that any outstanding private treatment records are pertinent to the Veteran's claim.  He has not contended otherwise.

The Board finds that there has been substantial compliance with the instructions of the June 2012 remand.  Accordingly, the Board finds that VA's duty to assist is met.

Legal Criteria, Factual Background, Analysis

When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected.  38 U.S.C.A. § 1151; 38 C.F.R. § 3.361.  To establish entitlement to benefits under 38 U.S.C.A. § 1151, the veteran must show each of the following: the disability or additional disability claimed; VA treatment; a nexus between the additional disability and the VA treatment; and that the proximate cause of the additional disability was some element of fault on the part of VA, or was an event not reasonably foreseeable.  The veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event not reasonably foreseeable.  See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151.

To determine whether additional disability exists, VA compares the Veteran's physical condition immediately prior to the beginning of medical or surgical treatment to the Veteran's physical condition after such care has ceased.  38 C.F.R. § 3.361(b).  To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the Veteran's additional disability.  Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c).

To establish that fault on the part of VA caused the additional disability, it must be shown that VA hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 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.  38 C.F.R. § 3.361(d).

As a preliminary matter, the Board notes that the Veteran does not contend that the TURP procedure took place without his informed consent.  VA treatment records pertaining to the procedure (including the April 2, 2002 report documenting that "consent signed and verified with pt")  clearly document that the proper informed consent was obtained.  Accordingly, the Board's analysis turns its focus to the questions raised by the Veteran's contentions and theory of entitlement in this case.

The Veteran alleges that he incurred new or additional bladder disability as a result of improper medical care at the VA facility.  Specifically, including as explained in a May 2012 written statement from the Veteran's representative, he alleges that during the attempt at a TURP at the VA Albuquerque Medical Center (VAMC) there was an "iatrogenic bladder injury during surgery."  The statement contends that in "[t]he month following the surgery the veteran was required to wear a catheter and had to visit the emergency room at least four times for issues with blood clots and urinary obstruction," and "he has residuals from the injury to include urinary frequency and pain."

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  The Board has reviewed both the Veteran's physical claims file, and his record in Virtual VA, to ensure a complete review of all available evidence.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's VA treatment records document that on April 2, 2002, he underwent a TURP. The surgical report notes, in pertinent part, that following some resection of the prostate "[t]he left ureteral orifice was seen; however, the right ureteral orifice was not identified and appeared to be involved in the resection.  After the damage to the ureteral orifice was seen, the procedure was terminated."  The pertinent reports document a diagnosis of "Iatrogenic bladder injury during surgery."  Another report from this time states that "[a]n uniatrogenic injury top [to?] the bladder occurred."  VA and private medical records confirm the Veteran's allegations that he required medical attention for difficulties with blood clots and a catheterization in the month following the surgical injury.  The Veteran has testified that he has experienced chronic symptoms since that time, including urinary frequency and pain, since the April 2002 TURP procedure.


A June 2003 VA medical report refers to a November 2002 "voiding trial which was very good" (also documented in the claims-file), and that the Veteran "states that his urinary stream is fast, but he is having some urinary frequency.  He states he was having frequency before his surgery.  Otherwise, he is doing well."

An April 2005 VA medical report shows that the Veteran "states he has had improvement post TURP in his LTOS.  He has no other complaints today...."

A report of a VA urology follow-up in January 2006 shows that the Veteran "has no new complaints today."  An August 2006 VA urology follow-up report shows "no new complaints" and that "he has some urinary frequency."  A February 2007 urinary follow-up report shows "he is having some urinary frequency," "he has a strong urinary stream," "he has no other urinary complaints today."

An August 2007 VA medical report shows that the Veteran had developed "nocturia" that was "not so bad," and that "during the day he has frequency."

An October 2007 VA treatment report shows that the Veteran reported urinary symptoms featuring: "[r]ecently, he has developed frequency during the day."  The report indicates that the Veteran "is here for cystoscopy to evaluate for residual tissue as his previous transurethral resection of the prostate was stopped prematurely secondary to perforation of the bladder during the procedure."  Examination found "a normal urethra and at the bladder neck he had a large regrowth of adenomatous tissue from the prostate."  The examiner noted: "The bladder was normal."

Subsequent medical records include reports concerning treatment for the Veteran's prostate cancer.  In May 2008, the Veteran filed the instant claim, alleging that the April 2002 TURP at a VA medical facility had involved "malpractice."  In September 2008, he specified that he sought compensation for bladder injury.

In August 2012 a VA examination was conducted to address the medical questions raised in this case.  The examination report quotes the April 2002 documentation of the TURP procedure acknowledging that the "the right ureteral orifice was not identified and appeared to be involved in the resection," and explains that the expert interprets the surgical reports as showing that "resection was completed" and that "[i]t does not state bladder perforation."  The August 2012 VA examination report cites "subsequent cystoscopies" as showing "[n]o objective evidence of bladder injury or its sequellae...."  The examiner explains that there is "[n]o radiological evidence (Post op Cystogram or Ultra sound to r/o extravasation of urine) of bladder injury was found in his records...."  Furthermore, the August 2012 VA examiner explained that "the fact that he recovered well (Discharged 2 days after surgery) without further intervention rules out clinically significant bladder injury."  Significantly, the August 2012 VA examiner explained that:

Perioperative incidences of post op bleeding, clot retention requiring catheter changes, urinary retention and regrowth of prostate tissue requiring resection following initial surgery are known sequelae of TURP and are not due to bladder injury and are not out side the community standard.

The August 2012 VA examiner further cites that the Veteran was "closely followed up by V.A. urologists for his prostate cancer," and points out that "Urology follow up notes of April 19 2005 reports, 'patient return for f/u of his low grade and low stage prostate cancer.  He states he has had improvement post TURP in his LTOS.  He has no other complaints today'...."

The August 2012 VA examiner's review of the medical documentation of record led the examiner to note that after "[h]e started getting increased frequency some time in 2006-2007," he "underwent cystoscopy on Oct. 4 2007 ... which showed normal urethra and bladder (no evidence of bladder injury or its sequelae)."  The August 2012 VA examiner noted that the cystoscopy revealed "a large regrowth of adenomatous tissue from the prostate," for which treatment was prescribed and "[h]is voiding Sx [symptoms] improved."  The August 2012 VA examiner explained that there was "[n]o objective evidencre [sic] of bladder injury or its residuals ... on cystoscopy done on Oct. 4 2007 and June 5 2012."  The August 2012 VA examiner noted that the Veteran states "his voiding Sx [symptoms] have almost resolved now"  and observed that the Veteran's private medical records documenting his June 2012 TURP show that "'left and rt ureteral orifices were identified and well back from the bladder neck.'  This suggests pt does not have any residuals of injury to ureteric orifice which was suspected at the time of TURP in 2002."

Based upon review of all of the pertinent information and medical documentation, the August 2012 VA examiner concluded that "no new or aggravated disability out of ordinary was found following V.A. treatment of 2002."  The Board interprets the August 2012 VA examination report as indicating that any potential injury to the bladder that may have occurred or been suspected to have occurred at the time of the April 2002 TURP did not result in any new or additional bladder disability.  The Board further interprets the August 2012 VA examination report as relying on several subsequent items of medical documentation consistently showing (1) no significant bladder abnormality upon diagnostic imaging and testing, (2) improvement of urinary function following the TURP (after the recovery period for a month thereafter) and prior to the later recurrence of prostate cancer, and (3) improvement of symptoms following subsequent treatment of the prostate cancer.

On review of the August 2012 VA examination report, the Board determined that it would be helpful to obtain another medical opinion, to ensure every consideration to the Veteran's appeal, confirming that the references to bladder "injury" in the medical documentation of the April 2002 TURP procedure did not actually reflect new or additional bladder disability.  The Board obtained a VHA medical advisory opinion to further explain what the evidence pertinent to the April 2002 surgery shows with respect to the critical medical questions presented.

The May 2013 VHA opinion-providing expert stated, "I completely agree with the previous opinion that no objective evidence exists of any bladder condition associated with a 'bladder injury' in Apr[il] 2002."  The expert explained that "[i]njury which may have occurred obviously healed nicely as evidenced by subsequent cystoscopies (including [by] civilian urologists) which described bilateral ureteral orifices plainly visible."  The expert further explained that "[t]he bleeding and urinary retention are well known and well described post op[erative] problems which can occur following TURP."  The VHA expert concluded that "[t]his patient has no disability from his TURP at the VA in Apr[il] 2002."  On the matter of the standard of the care provided, the expert explained that "[t]his patient received excellent care[,].... there is no disability and no carelessness or negligence by any VA physician involved in his care."  The VHA expert concluded that "[t]here is no new/aggravated urological diagnosis" and noted that "[the Veteran] was found to have low grade prostate cancer which is followed closely."  Furthermore, the VHA expert comments that "[h]is life was significantly improved (urologically) in the decade following his TURP."

The Board finds that the May 2013 VHA medical expert opinion, informed by review of the claims-file and directly addressing the key medical questions at issue in this case, to be probative evidence weighing against the Veteran's claim on appeal.  Significantly, there is no contrary competent medical opinion of record to weigh against the conclusions of the May 2013 VHA medical expert opinion.  The May 2013 VHA medical expert's opinion resolves any arguable ambiguity as to whether the August 2012 VA examiner's opinion was consistent with the references to "injury" in the April 2002 medical reports.  Thus, the most probative medical evidence indicates that any injury involved in the April 2002 TURP at a VA facility was acute in nature, "healed nicely," and did not result in any chronic disability or worsening of disability.  The most probative evidence indicates that the Veteran's immediate post-operative symptoms of bleeding and urinary retention are "well known and well described" sequelae of a TURP procedure and not manifestations of new chronic disability or fault on the part of the medical treatment; it further indicates that none of the details of the TURP procedure nor any of the Veteran's symptoms following the procedure reflect any fault or any unforeseeable event.

To the extent that the Veteran advanced this claim on the basis of his expressed belief that residuals of a bladder injury during the April 2002 TURP procedure have cause new or worsened disability, his testimony to this effect is the only evidence in the record indicating that a new or worsened disability resulted from any injury during the April 2002 TURP.  While he is competent to report symptoms he experiences, as a layperson he does not possess the expertise necessary to diagnose an internal pathology or to determine etiology of such pathology.  The competent medical evidence indicates that any injury to the Veteran's bladder healed without residual disability, and that the only pathology associated with the Veteran's urinary symptoms has been his recurrent prostate cancer.  These are medical matters beyond the scope of lay observation; and clearly require medical expertise (and diagnostic studies).  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran does not cite to supporting medical opinion or medical literature.

To establish entitlement to benefits under 38 U.S.C.A. § 1151, as a threshold matter, the Veteran must show that he actually has additional disability as a result of VA treatment or surgery.  In this case, even acknowledging the suggestions in the April 2002 VA medical records that some manner of injury occurred during the TURP, the preponderance of the evidence in this case clearly weighs against findings that any chronic new or worsened bladder disability resulted from such injury.  The Veteran's well-documented symptoms during the period of approximately one month of recovery following the TURP procedure have been explained by probative medical opinions to be known and standard sequelae of TURP rather than indicative of fault or of new/worsened disability.  No competent medical evidence indicates otherwise.  The contemporaneous medical documentation of the Veteran's symptom complaints following the immediate recovery period reflects that his symptoms were improved or at least no worse than prior to the April 2002 TURP.  A June 2003 VA medical report notes the Veteran's own description that he was "having some urinary frequency" but that "he was having frequency before his surgery" and "[o]therwise, he is doing well."  This report, informed by the Veteran's own account of his symptoms history at the time, indicates no worsening of the Veteran's bladder function following the April 2002 TURP relative to the function before the surgery.  Objective medical evidence shows the Veteran's bladder was normal following the April 2002 TURP, and there is no medical evidence of onset of any chronic bladder pathology following the TURP.  The evidence reflects that any injury to the bladder which was suspected or may have occurred during the April 2002 TURP was an acute injury that healed with no residual bladder disability resulting.

The contemporaneous and probative evidence all indicates that manifestation of some urinary symptomatology several years after the TURP was specifically attributed to a recurrence of the Veteran's prostate cancer; significantly, the evidence shows that concerns regarding any bladder abnormality were resolved by testing revealing that the bladder was normal (as noted in an October 2007 VA medical report).  There is no probative evidence indicating that any disability was caused or increased in severity as a result of bladder injury during the April 2002 TURP procedure.  The threshold legal requirement for substantiating a § 1151 claim, evidence of additional disability resulting from VA treatment, is not met.

In summary, the most probative evidence of record indicates that (1) the Veteran underwent an April 2002 TURP procedure to treat an existing disability including urinary frequency, (2) that any injury to the bladder incurred during the TURP procedure was acute and transient in nature with no resulting chronic additional disability, and (3) that any new symptoms following the TURP procedure were consistent with known and foreseeable post-operative manifestations associated with recovery from a TURP procedure (and were acute).  The most probative evidence further indicates that there was no instance of fault on the part of VA nor any reasonably unforeseeable event associated with the April 2002 TURP procedure resulting in chronic additional disability.  Accordingly, the criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 are not met.  


ORDER

The appeal to establish entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a bladder injury resulting from a TURP procedure by VA in April 2002 is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs