Citation Nr: 1334120 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-49 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for the residuals of transurethral valve ablation surgery performed in January 2005. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO denied a claim of entitlement to compensation under 38 U.S.C.A. § 1151 for "transurethral resection of the bladder, with residuals of chronic renal insufficiency (CRI), anemia, fatigue and bladder pain." As the nature of the surgery was clarified in the August 2013 Veteran's Health Administration (VHA) opinion, the issue has been re-characterized on the title page. In May 2012, this case was remanded for Social Security Administration (SSA) records, a new VA opinion and examination and VA records. As explained further below, the Board finds there has been substantial compliance with the remand. In April 2009, a hearing before a decision review officer (DRO) was held, and in February 2012, a hearing before the undersigned was held at the RO; transcripts of these hearings are of record. FINDING OF FACT A preponderance of the evidence is against a finding that the Veteran had additional disability following transurethral valve ablation surgery performed in January 2005. CONCLUSION OF LAW The criteria for disability compensation under the provisions of 38 U.S.C.A. § 1151 for the residuals of transurethral valve ablation surgery performed in January 2005 is not warranted. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA In a September 2008 letter, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The AOJ notified the Veteran of information and evidence necessary to substantiate his claim for entitlement to compensation under 38 U.S.C.A. § 1151. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the same letter, he was informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Here, VA, service treatment and private records have been associated with the claims file. All reasonably identified and available medical records have been secured. Although prior VA examiner opinions were incomplete, the Board finds the August 2013 VHA opinion given in conjunction with his claim to be fully adequate and that it is wholly explanatory based on the facts and circumstances of this case. SSA records and pertinent VA records have been associated with file; although a signed consent form is not in file (see September 2012 AOJ memorandum) the Veteran has not contested that he signed the form (see September and February 2012 statements and DRO transcript, pp 6-7). As explained below, consent is not an issue in this case, as no additional disability has been demonstrated. While the Veteran filed a Federal Tort Claims Act application, the record shows that it was summarily denied as untimely, thus no further follow up is necessary (see May 2009 VA Regional Counsel letter). In effect, the Board finds that there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the February 2012 Board hearing shows that the Veteran provided information regarding his claim and responded to questions aimed at determining whether further information was needed to substantiate the claim. (See generally, Board Transcript, p 11.) The Veteran has not raised complaints regarding the conduct of the hearing. His representative, who was present at the hearing, has also not raised any complaints. The Board finds the duties to notify and to assist have been met. Entitlement under 38 U.S.C.A. § 1151 Under the provisions of 38 U.S.C.A. § 1151 (West 2002 & Supp. 2013), if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the veteran's own willful misconduct, compensation is awarded in the same manner as if the additional disability were service-connected. See also 38 C.F.R. § 3.361 (2013). While claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection; there are similarities in their adjudication. See Anderson v. Principi, 18 Vet. App. 371, 376 (2004) (a claim under § 1151 is not a claim for service connection: the disability is not to be treated generally as if it were service-connected). In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the medical and surgical treatment upon which the claim is based to the veteran's condition after such care or treatment has stopped. 38 C.F.R. § 3.361(b). VA considers each involved body part or system separately. Id. If additional disability is shown, then other elements must be established for entitlement under § 1151, including causation. See 38 C.F.R. § 3.361(c)-(d) (2013). Additional disability is a prerequisite for subsequent elements. While the claim before the Board is not one of service connection, it finds that the general principles of considering lay evidence apply here. In Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 C.F.R. § 1154(a) the Board must do more than look for a medical nexus in adjudicating claims with lay evidence; it must also discuss competence and credibility. Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. See 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). In determining whether lay evidence is satisfactory, the Board may consider the demeanor of the witness, internal consistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the veteran. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, the Board does not find that claim satisfies the initial element for entitlement to compensation under § 1151 based on all of the evidence of record, including lay and medical evidence. The August 2013 VHA opinion is found to be highly probative, as it considers all of the evidence in reaching a reasoned conclusion. The Veteran's assertions regarding his claim have changed during its pendency, as his medical situation has altered. Initially, he filed a § 1151 claim in November 2007 based on a January 2005 surgery at a VA Medical Center (VAMC). He stated that his disabilities included chronic renal insufficiency, anemia, chronic fatigue, and bladder pain. At one point, he also claimed the January 2005 surgery was a transurethral resection of the prostate or TURP (see February 2008 claim of service connection). His symptoms were summarized in June 2008. He stated that he was dependant on self-catheterization, had large bladder diverticula, was currently listed on the kidney transplant list, and had chronic renal insufficiency due to his posterior urethral valve. At the April 2009 DRO hearing, the Veteran essentially stated that he had some urination problems before his surgery at VA. After the surgery these problems worsened and had continued to the present time. He explained that in 2004 he was working two jobs and he started having a problem with frequent urination. (DRO Transcript, pp 2-3). He had surgery on January 4, 2005 (DRO Transcript, p 4.) The Veteran believed that medical personnel determined he had an enlarged prostate that was causing his urination and bladder problems. (DRO Transcript, p 6.) The Veteran testified that he started wearing a catheter after his surgery, not before it (DRO Transcript, pp 6-7). He thought that after the surgery he would eventually be able to urinate without the catheter, but that did not turn out to be the case (DRO Transcript, pp 7-9). After the surgery, he was told by the urologist that there was no way to fix his current problem and avoid use of the catheter (DRO Transcript, p 9). He also testified that he had urinary tract infections during the time he first started using the Foley catheter (DRO Transcript, p 10) and that he was currently still using a catheter (DRO Transcript, p 11). He could currently urinate a little, but could not fully empty his bladder (DRO Transcript, p 12). By the time of the February 2012 Board hearing, the Veteran testified that he was no longer self-catheterizing and that his urinary problems had subsided. The Veteran stated that after his surgery he kept going in to see the VA urologist, but his condition was not getting any better. (Transcript, p 4.) He had some other medical problems and decided to see a new doctor, Dr. C.T. (Transcript, p 5). Dr. C.T. placed a prosthetic stent to fix the voiding problem and then did a permanent surgery in June 2010 (laser ablation of the prostate) and the Veteran was now able to urinate on his own without the catheter (Transcript, pp 5-6). The Veteran now understood that he did not have TURP done at VA in January 2005 (Transcript, p 7.) He asserted that because of the six years of catheterization, he suffered permanent damage resulting in dizziness and a low energy level (Transcript, p 9). He further alleged that VA performed the wrong surgery on him. Id. The Veteran's representative asserted VA stated that "in order to correct their original error, they intended to place the Veteran on transplant lists and started the process for pretransplantation of the kidney..." (Transcript, p 12.) He had no kidney pain since Dr. C.T.'s surgery in 2010 (Transcript, p 13). His other current symptoms included nighttime voiding (Transcript, p 14). A review of the evidence shows that some of the Veteran's statements are consistent with the medical record. For example, he contends that, prior to the VA surgery his only symptoms were the urinary problems that prompted that procedure. Moreover, his testimony appears to indicate that he only had to self-catheterize following the surgery, but again the records show otherwise. Indeed, a September 27, 2004 VA emergency room note showed a recent diagnosis of benign prostatic hypertrophy (BPH), with one liter of residuals after voiding urine. He was discharged with an indwelling Foley catheter. His creatinine had continued to rise and he had hypertension. He stated that he was having trouble controlling his bladder and would wake up with urine in his bed. The next day he visited the VA renal clinic where he reported symptoms of headache, weakness and dizziness (mainly the symptoms he is still claiming as residuals of the surgery). He also suffered frequent urination. Urinary incontinence was noted for the past five months. His diagnosis was questionable acute or chronic renal failure and anemia of unknown etiology. Other records in the file also show similar and other symptoms pre-surgery (see November 2004 VA primary care initial visit record showing incontinence at night and November 2004 VA genitourinary record showing severe lower urinary tract infections). Further, the evidence shows that the Veteran's testimony that he was first instructed on how to use the catheter and to do clean intermittent catheterization (CIC) after surgery is incorrect because he was instructed at least twice before the surgery (see October 2004 VA urology licensed vocation nurse note and December 20, 2004 VA urology note). After the surgery, an April 2005 VA genitourinary record noted that he had acute urinary retention from September 2004 "but had [lower urinary tract symptoms] prior to this." His left flank pain had resolved and he had a CIC before surgery and indwelling catheter after. The assessment was urination status post posterior urethral valve (PUV) release. He had continued nocturnal incontinence and a condom catheter was recommended for that. It was also noted he had continued anemia. The December 2004 anesthesia pre-operative history and physical examination record noted that he had no weakness, dizziness or angina symptoms. He was able to walk as far as he wanted. He was noted to have the CRI, urinary incontinence, hypertension and hyperlipidemia. Although weakness or dizziness were not indicated in this record, the evidence above shows he did suffer such symptoms prior to his surgery and this was part of the reason for his surgery in the first place, in addition to his urinary symptoms. While the Veteran is competent to state what he has personally experienced regarding his urinary disability under 38 C.F.R. § 3.159(a)(2), the Board finds that the assertion that he developed the symptoms of dizziness and a low energy level (weakness) only after the surgery to be in conflict with the above-cited evidence of record. The Board finds the Veteran's memory is not fully accurate regarding the onset of his current symptoms. See Caluza v. Brown, 7 Vet. App. at 511. His statements in this regard are assigned less evidentiary weight. VA records show the Veteran had a surgery on January 4, 2005 and that it failed to resolve his urinary problems. Dr. C.K., the attending urologist, noted that the Veteran started to have problems urinating four to five months prior to acute urinary retention. A TURP was planned, but the etiology of the problem was unclear at this point. They wanted to "render him free of CIC." He was able to void with CIC and had intermittent incontinence. His left flank pain resolved after increasing CIC daily. A January 4, 2005, operative report showed that the procedure was ablation of the posterior urethral valves, not a TURP. The clinical indications noted that he had a history of acute urinary retention since September 2004. Since that time, he had failed multiple "fill-pull-void trials" and was on continuous self-catheter in order to keep his bladder empty. This report noted a prior diagnosis of chronic renal insufficiency and hydronephrosis (documented by ultrasound). A cystoscopy showed no clear prostate obstruction; it showed severe trabeculation and multiple large diverticula in the bladder. (Trabecula means, in anatomical nomenclature, a supporting or anchoring strand of connective tissue, such as one extending from a capsule into the substance of the enclosed organ. Trabeculation is the formation of trabeculae in a part. See Dorland's Illustrated Medical Dictionary, p 1970 (31st ed. 2007). He was admitted for a possible transurethral incision of the bladder neck. However, upon induction of anesthesia, the Veteran was immediately incontinent of urine and it was felt that there was clearly no obstruction at the level of the prostate or bladder neck. Upon further review, urethral valves could be seen ballooning out bilaterally. The valves were then ablated. In a January 4, 2005 post operative record associated with the surgery, the Veteran reported no pain and expressed his understanding of how to take care of the catheter. On January 10, 2005, a VA chief resident noted that the Veteran was status post ablation and that his catheter was in place but should be removed that day. This record states: "Continue CIC for life with goal volumes less than 400cc." While several records reference that a TURP was performed or was scheduled (See November 2004 VA genitourinary record, January 2005 anesthesiologist record, and January 2005 surgery information record), the operative note makes clear that it was not performed. (See also Dr. C.T.'s February 2010 record.) The evidence shows the Veteran's urinary symptoms were fully resolved in 2010. Dr. C.T.'s June 2010 letter provides an accurate summary of the Veteran's 2010 treatment and the Veteran requested a second opinion regarding voiding dysfunction. Dr. C.T. ended up placing a temporary prostatic stent to simulate his voiding pattern, should he undergo a TURP. He had a strong urine stream with resolution of many of his complaints. Next, he underwent laser ablation of the prostate and postoperatively had a good emptying of the bladder. He had resolution of his pain without a need to perform a CIC. He had no more urinary incontinence. Follow up records showed the Veteran was doing "fantastic" and "great." (See August 2010 and February 2011 Dr. C.T. records showing his urine stream was strong, flank pain was resolved, and no active problems were noted). In August 2013, a VHA opinion showed the Veteran had no additional disability. The urologist noted the Veteran's assertions that he had residuals of dizziness, fatigue and pain due to the procedure performed in January 2005. She also noted his assertion that if a TURP had been performed he would have avoided continued urinary retention, a need for a Foley, and prevented renal damage. She noted that the planned procedure was "bladder neck incision" and not a TURP, via the operative report. Also, the procedural actually performed was a transurethral valve ablation, not a transurethral resection of the bladder. The urologist noted that the pelvic/flank pain largely resolved after the January 2005 surgery and that there was none shown after his private treatment in 2010. (See Dr. C.T.'s June 2010 letter noting the resolution of pain and August 2010 and February 2011 records.) The symptoms of fatigue and dizziness were multi-factorial and most likely related to other causes. There was a low probability that they were related to the January 2005 surgery. For example, the urologist noted that VA genitourinary staff had evaluated the Veteran for anemia in December 2004, prior to the surgery. She also noted that he was treated for a brain tumor or "non-secretory pituitary adenoma" and complications from May 2008 to April 2009. Finally, the renal insufficiency was present before the surgery. The urologist suspected that the CIC was not taking place as recommended. There was no additional disability in regard to the renal insufficiency because the creatinine level was 2.3 at presentation and was unchanged when compared with the current level of in September 2012 (2.09). Regarding the appropriateness of the surgery, she stated that he was scheduled for bladder neck incision. When the posterior urethral valves were found, the appropriate procedure was valve ablation. This conclusion makes sense in the context of the January 2005 operative report which states: "Upon further review, urethral valves could be seen ballooning out bilaterally. The valves were then ablated." In any case, there was no additional disability. The Board finds that the August 2013 VHA opinion is supported by a review of the treatment evidence in that tiredness and weakness were related to the Veteran's other medical problems. For example, a July 2005 VA primary care record noted a lower GI bleed and anemia, which were worsening due to gastroesophageal reflux disease and hemorrhoids; another July 2005 primary care record showed Dr. R.S. informed him that light-headedness or dizziness could be due to prescribed medication; a March 2007 VA primary care record noted he was unable to sleep and was chronically tired; and an April 2007 VA emergency room noted hemorrhoids as a source of anemia. The Board finds the August 2013 opinion to address the issue of whether an additional disability is found in this case and that it is fully responsive to that question; it is assigned great weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion). To the extent the August 2013 VHA urologist commented on medical malpractice principles generally in the opinion, the Board does not assign these statements any weight. The Board finds that such statements do not affect the overall medical conclusions proffered because the urologist did not reference them further in giving the opinion. The opinion showed the VHA urologist reviewed the entire file including laboratory findings, operative reports, the Veteran's statements and testimony and provided an accurate and complete opinion. Given the conclusion of the August 2013 VHA opinion, the Board finds that while the January 2005 surgery did not correct the urinary problems, there was no additional disability after the surgery because such symptoms were already in existence prior to the surgery. Further, the urinary problems were resolved in 2010 by an outside provider. Additional disability is essential element of the claim. 38 C.F.R. § 3.361(b). Without this element it is not necessary to consider the others, including causation. See 38 C.F.R. § 3.361(c)-(d). In reaching this conclusion, the Board notes that other opinions given in this case were not sufficient because the initial VA examination in took place before 2010, and the 2012 VA examination report and addendum also found no additional disability but contained conflicting statements. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for the residuals of transurethral valve ablation surgery performed in January 2005 is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs