Citation Nr: 1330455	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  13-01 469	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for rectal bleeding, claimed as due to a prostate biopsy performed by VA in January 2002.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Marne Marotta, Associate Counsel






INTRODUCTION

The Veteran served on active duty from February 1966 to February 1968. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 
 
The issue of entitlement to service connection for prostate cancer has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

The preponderance of competent and probative evidence of record is against a finding that rectal bleeding resulted from a prostate biopsy performed by VA in January 2002.


CONCLUSION OF LAW

The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for rectal bleeding, claimed as due to a prostate biopsy performed by VA in January 2002, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.154, 3.358, 3.361 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist 

VA has duties to notify and assist a claimant 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).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The duty to notify was satisfied via a letter sent to the appellant in September 2010. 

The duty to assist has also been satisfied.  VA has obtained the Veteran's service treatment records and VA medical records identified as relevant to the appeal.  The VA also obtained a VA medical opinion in October 2011.  The VA opinion is sufficient, as the examiner considered all of the pertinent medical evidence of record and the Veteran's statements in formulating his opinion.  The examiner provided a complete rationale for his opinion and relied on and cited to the records reviewed.   The Board finds that VA's duty to assist with respect to obtaining VA examination or opinion with respect to the issue of entitlement to compensation under 38 U.S.C.A. § 1151  for rectal bleeding as a result of VA treatment has been met. 38 C.F.R. § 3.159(c)(4). 

The Veteran has stated that he should be given an independent medical examination (IME) because the October 2011 examiner works for the VA medical system and is potentially biased. However, the Board notes that the October 2011 examiner does not work at the same facility where the Veteran had his January 2002 biopsy procedure.  In addition, the examiner is not a clinician who treated the Veteran in January 2002, and there is no indication that the examiner was associated with any such clinician. Moreover, there is no indication that the October 2011 examiner is in any way biased in favor of the Battle Creek VA health system, or against the Veteran. Therefore, in the absence of any evidence that the October 2011 examiner was not independent, the Board finds that another opinion is not warranted. 

The Veteran has not identified any other relevant evidence that has not been requested or obtained.  The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. 
 
II.  1151 Claim

When a Veteran suffers an 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(a). 

For claims, as here, filed after October 1, 1997, the Veteran must show that the VA treatment in question resulted in an additional disability and, further, that the proximate cause of the additional 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 the disability was an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(a)-(d); VAOPGCPREC 40-97 (Dec. 31, 1997).

In determining whether an additional disability exists, the Veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to his condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b).

Provided that an additional disability exists, the next consideration is whether the causation requirements have been met, which consists of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1).

Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(1) .

Proximate cause may also be established where the Veteran's additional disability was an event not reasonably foreseeable, 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32 ). 38 C.F.R. § 3.361(d)(2).

III.  Analysis

The Veteran maintains that he suffers from rectal bleeding as a result of a January 2002 transrectal ultrasound guided needle biopsy of his prostate that was performed at a VA medical center (VAMC).

In November 2001, the Veteran presented for a urology consult and was referred for a prostate ultrasound and biopsy.  The physician indicated that she discussed the procedure risks, including the risk of bleeding and infection.  According to the record, the Veteran verbalized understanding and was given written information about the procedure. 

The biopsy procedure was completed in January 2002. A procedure note indicates that the Veteran "tolerated [the] procedure well" and does not point out any operative complications.  The pathology report showed nothing to suggest injury to any surrounding structure.  In a February 2002 follow-up appointment, the Veteran indicated that he had not experienced pain, burning or hematuria since his biopsy procedure. 

In July 2002, the Veteran presented for a six month evaluation and indicated that he did not have any new problems. In September 2003, during an annual examination, the Veteran denied any urinary problems, pain, or blood in his urine or stool. 

During an October 2010 urology consult, the Veteran refused a repeat prostate biopsy and indicated that he had pain and a hemorrhoid as a result of the January 2002 biopsy.  In February 2011, the Veteran presented for a rectal exam and colonoscopy, which revealed no evidence of a hemorrhoid, other perianal mass or any bleeding site.  

In October 2011, the AOJ obtained a VA medical opinion.  The physician noted that although the Veteran indicated that, shortly after the January 2002 biopsy procedure, he developed a small painless anal mass that bled in small amounts usually after exertion, the Veteran's VA medical records contained no complaints of or treatment for hemorrhoids, aside from his October 2010 statement and refusal to have another prostate biopsy.  The physician indicated that there was no evidence of negligence, and opined that it was very unlikely that the Veteran's rectal bleeding is in any way related to the biopsy procedure.  The physician explained that the biopsy procedure was routine; the procedure notes show nothing unusual and there were no post-procedure notes suggesting complication.  The pathology report showed nothing to suggest injury to surrounding structures.  The physician further noted that there is no plausible mechanism by which a prostate biopsy could result in a hemorrhoid, and that a February 2011 rectal exam and colonoscopy found no evidence of a hemorrhoid or bleeding site. 

The Board finds that the preponderance of the evidence is against the claim. The Veteran has not at any time been shown to manifest a hemorrhoid following the January 2002 biopsy procedure.  At no point do the Veteran's medical records indicate that he complained of or sought treatment for rectal bleeding or a hemorrhoid, aside from an October 2010 note that indicates the Veteran did not want to undergo another prostate biopsy because he believed that he obtained a hemorrhoid from the first procedure. A February 2011 VA colonoscopy and rectal exam failed to show any evidence of a hemorrhoid, bleeding site or any perianal mass. Thus, there is no apparent sign of the condition that the Veteran claims as his additional disability following the January 2002 biopsy procedure. Nonetheless, the Veteran has indicated that he suffers from rectal bleeding after exertion and the Board finds him competent in that regard.  The Board will assume that this represents an additional disability following the biopsy procedure.   

The determinative question then turns to one of causation, both actual and proximate causation. There is a well-reasoned October 2011 VA medical opinion stating that it is very unlikely that the Veteran's rectal bleeding condition is in any way related to the biopsy procedure because there is no plausible mechanism by which a prostate biopsy could result in a hemorrhoid. As the physician observed, the biopsy procedure was entirely routine, no complications were noted and the pathology report showed nothing to suggest injury to the surrounding structures.  The physician also indicated that a February 2011 rectal exam and colonoscopy showed no evidence of a hemorrhoid, other perianal mass, or any bleeding site.  

The Veteran has not advanced a theory of causation, aside from noting that prior to the biopsy procedure he did not experience rectal bleeding and after the procedure he did experience rectal bleeding.  As a lay person, the Veteran is competent report symptoms and immediately-observable relationships.  He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his reported bleeding is related to any specific VA treatment, as opposed to some other cause.  Rather, it would require medical expertise to evaluate the disabilities, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2).  In addition, merely showing that the Veteran received medical treatment and has an additional disability does not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1).  Given the tenable rationale, and the medical credentials of the VA physician, the Board finds the October 2011 opinion highly persuasive. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  

Even apart from this initial question of actual causation, which is resolved unfavorably, the VA examiner provides an opinion on the subject of proximate causation, in finding that there was no evidence of negligence. In addition, the Veteran was informed about the risks of the procedure in November 2001, which included bleeding or infection.  In any event, it is sufficient that the procedure was not the actual cause of the Veteran's later claimed rectal bleeding condition; the element of causation has not been proven.

On these grounds, there is no evidence that the Veteran has an additional disability that was caused by the January 2002 prostate biopsy procedure. Therefore, the criteria for recovery under section 1151 are not met, and the instant claim must be denied. The preponderance of the evidence is unfavorable, and therefore the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a prostate biopsy procedure administered by VA in January 2002, to include rectal bleeding, is denied. 




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs