Citation Nr: 1333574 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-34 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for residuals of a hernia operation manifesting in an inability to urinate due to VA treatment in March and April 2005. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which, in pertinent part, denied the claim for compensation under 38 U.S.C.A. § 1155 (West 2002). The Veteran's appeal was previously before the Board in April 2012 when it was remanded to allow for the scheduling of a hearing before the Board at a local VA office. The hearing was scheduled for July 18, 2012, but on the day of the hearing, the Veteran cancelled the hearing request and asked that his case proceed directly to the Board. The Board therefore finds that the Veteran has withdrawn his request for a hearing in accordance with 38 C.F.R. § 38 C.F.R. § 20.704(e) (2013) and will proceed with a decision in this case. FINDING OF FACT The Veteran did not incur any additional disability to include an inability to urinate due to VA treatment in March and April 2005. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for residuals of a hernia operation manifesting in an inability to urinate due to VA treatment in March and April 2005 have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.361, 17.32 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that compensation is warranted under 38 U.S.C.A. § 1151 (West 2002) for an additional disability incurred as a result of treatment performed at a VA facility. The Veteran essentially argues that VA failed to properly treat and diagnose a right inguinal hernia with an incarcerated bladder in March and April 2005. As a result, he underwent two hernia repairs at a private facility and incurred substantial financial obligations. In February 2005, the Veteran was seen at the Atlanta VA Medical Center (VAMC) with complaints of difficulty urinating and intermittent swelling of the right scrotum. The examining physician suspected a bladder herniation into the right scrotum. A cystoscopy was performed on March 30, 2005 and a large bladder herniation into a right inguinal hernia was observed. The Veteran was scheduled for a follow-up and hernia repair surgery in eight weeks. A week later, on April 7, 2005, the Veteran returned to the VAMC with symptoms of blood in his urine following the cystoscopy. He was prescribed antibiotics and told to call the clinic if he continued to experience problems. On April 10, 2005, the Veteran reported to the emergency room of Athens Regional Medical Center (RMC) complaining of scrotal pain and trouble urinating. The emergency room doctor noted the Veteran's long history of an inguinal hernia and VA's findings of a herniated bladder. The inguinal hernia was reduced and a diagnosis of a right inguinal hernia with an incarcerated bladder was rendered. A Foley catheter was inserted and the private physician recommended that the Veteran undergo a hernia repair procedure soon. The Veteran requested a discharge and stated that he would return to VA the next morning. The next day, April 11, 2005, the Veteran was seen at the Atlanta VAMC emergency room. He complained of severe pain and hematuria since the placement of the catheter at Athens RMC. The catheter was removed, and the Veteran was discharged to home with medication. Hernia repair surgery was scheduled for April 25, 2005. Later the same day, the Veteran returned to Athens RMC with swelling of the right scrotum and pain post-catheter removal. The inguinal hernia was reduced and the Veteran was admitted to the private facility. The treating physician contacted the Augusta VAMC in an attempt to transfer the Veteran, but was told that the VA hospital was "on diversion" and could not accept the Veteran. As a result, a right inguinal hernia repair was performed at the Athens RMC a few hours later. The Veteran continued to receive treatment at the private facility and a second hernia repair with mesh placement was performed on April 13, 2005. The Veteran was discharged from the hospital on April 14, 2005. The Veteran was again admitted to Athens RMC from April 17, 2005 to April 25, 2005 for complications arising from his dual hernia repair surgeries. He developed right scrotal swelling and a CT scan demonstrated a small hematoma around the bladder. A third surgical procedure was performed to evacuate the hematoma on April 21, 2005. The Veteran was seen at the VAMC a month later on May 25, 2005 and was found to be doing well post-surgery. He had no genitourinary complaints and his scrotal swelling was improving. As the Veteran was no longer taking his prescribed medications to treat an enlarged prostate, the prescriptions were discontinued. A follow-up with his private doctor in June 2005 showed similar findings; the Veteran's right scrotum was still slightly large, and he was advised to return only as needed. The Veteran contends that he has experienced urinary abnormalities since his April 2005 hernia repair surgeries. He alleges the additional disability was incurred due to VA's failure to properly treat and diagnose his condition during his March and April 2005 visits to the Atlanta VAMC. Specifically, the Veteran argues that VA was negligent in sending him home following his March and April 2005 hospital visits and should have performed a hernia repair at their facility as soon as the March 2005 cystoscopy demonstrated bladder involvement with the right inguinal hernia. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the 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. Under 38 U.S.C.A. § 1151, it is necessary to show that disability or death was the result of carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or an event not reasonably foreseeable. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). After review of the evidence, the Board finds that the Veteran did not incur any additional disability due to VA treatment in March and April 2005. The record clearly establishes that the Veteran underwent two hernia repair surgeries at a private facility in April 2005 after receiving treatment at the VA for complaints of pain and scrotal swelling, but the weight of the competent evidence is against a finding that the Veteran's current complaints of urinary difficulty were the result of any VA treatment (or failure to treat) the Veteran. Treatment records from private and VA facilities document the Veteran's long history of voiding problems dating from 2001, when he was diagnosed with benign prostatic hyperplasia (BPH). When he presented to the Atlanta VAMC in February 2005, he reported additional symptoms of a swollen scrotum and having to squeeze his scrotum to properly urinate. The examining physician immediately suspected a herniated bladder and a cystoscopy was scheduled and performed several weeks later. At post-operative VA and private examinations performed in May and June 2005, the Veteran denied any genitourinary residuals from surgery and the only finding was a swollen scrotum. No urinary problems were identified. The Veteran has also consistently denied experiencing symptoms of urinary frequency, urgency, and nocturia while receiving medical treatment for other disabilities at the VA since his 2005 surgeries. Thus, treatment records establish that the Veteran has a long history of urinary problems associated with a prostate disability and a lack of documented complaints for urinary abnormalities following the April 2005 surgeries at Athens RMC. The record also contains a VA medical opinion weighing against the claim. The Veteran was examined by a VA physician in March 2007 who also reviewed the complete claims file. The VA examiner acknowledged the Veteran's long history of prostate problems and concluded that his current complaints of urinary frequency, nocturia, and urgency were most likely caused by a known prostate enlargement. The examiner also noted that the Veteran's medications to treat his prostate were discontinued following the April 2005 surgeries. As noted above, the Veteran's VA physician determined that the Veteran was no longer taking the medications and they were discontinued in May 2005 as the Veteran was voiding well. The March 2007 VA examiner's opinion was rendered based on an accurate presentation of the Veteran's past medical history and was well-supported with references to specific evidence in the claims file. The Board therefore finds that it is entitled to substantial probative weight. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (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). The Board has considered the statements of the Veteran linking his current reported voiding problems to VA's treatment and alleged failure to provide treatment in March and April 2005. The Board has considered the statements of the Veteran connecting his current reports of voiding problems to VA treatment, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, such as urinary frequency and urgency, but finds that his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). In addition, his opinion is clearly outweighed by the medical opinion rendered by the March 2007 VA examiner and the contents of the VA and private treatment records, which actually contradict the Veteran's complaints of current voiding dysfunction. The competent medical evidence of record therefore establishes that the Veteran did not incur any additional disability due to VA treatment in March and April 2005. As the Veteran did not incur an additional disability as a result of VA treatment during the period from March 2005 to April 2005, the claim for compensation under 38 U.S.C.A. § 1151 must be denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a July 2005 letter. Although he has not received specific information regarding the disability rating and effective date elements of his claim, as the claim is being denied no disability rating or effective date will be assigned. Therefore, the Veteran is not prejudiced by the lack of notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided a proper VA examination and medical opinion in March 2007 in response to his claim. The Board also finds that VA has complied with the April 2012 remand orders of the Board. In response to the Board's remand, the Veteran was scheduled for a hearing before the Board at the RO in July 2012. The Veteran withdrew his hearing request and the case has returned to the Board. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for residuals of a hernia operation manifesting in an inability to urinate due to VA treatment in March and April 2005 is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs