Citation Nr: 1442587 Decision Date: 09/23/14 Archive Date: 09/30/14 DOCKET NO. 00-25 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for right flank pain, claimed as due to Department of Veterans Affairs (VA) lack of proper care/negligence in providing surgical treatment in August 1998. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from March 10-30, 1972. This case has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for right flank pain, claimed as due to VA lack of proper care/negligence in providing surgical treatment in August 1998 ("1151 claim"). In February 2001, the Veteran testified at an RO hearing. A copy of the hearing transcript has been added to the record. In February 2002, the Board denied the Veteran's 1151 claim. The Veteran, through his attorney, appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("Court"). In a March 2003 decision, the Court vacated and remanded the Board's February 2002 decision. In September 2005, May 2010, and in May 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. In its September 2005 remand, the Board directed that the RO/AMC provide the Veteran with appropriate VCAA notice and schedule him for an examination. This notice subsequently was provided in November 2005 and the Veteran was examined in May 2006. In its May 2010 remand, the Board directed that the RO/AMC schedule the Veteran for a Board hearing which was held at the RO before a Veterans Law Judge in June 2010. In its May 2011 remand, the Board directed that the RO obtain the Veteran's updated treatment records and readjudicate his claim. These records subsequently were associated with the Veteran's claims file and his claim was readjudicated. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board obtained a Veterans Health Administration (VHA) opinion in February 2011 and provided a copy to the Veteran and his attorney along with an opportunity to respond. See 38 C.F.R. §§ 20.901(a), 20.903 (2013). In July 2012, the Veteran was informed that the VLJ who held his June 2010 Board hearing was no longer with the Board. The Veteran was offered an opportunity to testify at another hearing before a different VLJ. He responded later in July 2012 that he did not wish to appear at another Board hearing. See 38 C.F.R. §§ 20.707, 20.717 (2013). In December 2012, the Board again denied the Veteran's 1151 claim. The Veteran, through his attorney, and VA's Office of General Counsel, filed a Joint Motion for Remand (Joint Motion) with the Court. In September 2013, the Court granted the Joint Motion, vacating and remanding the Board's December 2012 decision. In May 2014, the Board obtained an independent medical expert opinion and provided a copy to the Veteran and his attorney along with an opportunity to respond. See 38 C.F.R. §§ 20.901(c), 20.903 (2013). The Veteran's attorney responded in June 2014 by providing copies of the Veteran's VA outpatient treatment records dated between January 2013 and June 2014. The attorney argued that these records showed that the Veteran's right flank pain had worsened in the previous 2 years. Having reviewed this evidence, and although it was submitted directly to the Board without a waiver of RO jurisdiction in the first instance, the Board concludes that it is not pertinent to Veteran's 1151 claim. This claim turns on whether a surgical procedure performed on August 26, 1998, at a VA Medical Center resulted in additional disability (right flank pain) and not on the current nature and severity of the Veteran's right flank pain (as demonstrated by his recent VA outpatient treatment records). Thus, the Board finds that a remand to the AOJ for review of the evidence received in June 2014 is not required. See 38 C.F.R. § 20.1304(c) (2013) ("Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues"); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided), and AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013) (holding that VA must consider all pertinent evidence, and pointing to authorities outside of the context of Veterans benefits law to describe what type of evidence is pertinent). FINDING OF FACT The record evidence shows that the Veteran's right flank pain was not proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation for right flank pain, claimed as a result of VA surgical treatment in August 1998, under the provisions of 38 U.S.C.A. § 1151, have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.361 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in November 2005 and in February 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence demonstrating that his right flank pain was the result of negligent VA surgical treatment in August 1998 and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As will be explained below in greater detail, the evidence does not support granting the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for right flank pain claimed as due to VA lack of proper care/negligence in providing surgical treatment in August 1998 ("1151 claim"). Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, VCAA notice could not have been provided prior to the currently appealed rating decision issued in September 2000 because that decision was issued prior to the VCAA's enactment in November 2000. The Veteran's 1151 claim subsequently was readjudicated after VCAA notice was issued. Because the Veteran's 1151 claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his attorney has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA paperless claims file has been reviewed and no relevant evidence was located there. There is no Veterans Benefits Management System (VBMS) eFolder associated with the Veteran's claim. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. The record evidence includes VA and private outpatient treatment records, including VA treatment records concerning treatment of his non-service-connected right flank pain, and an independent medical expert's opinion dated in May 2014 which addressed the contended causal relationship between the Veteran's VA surgical treatment in August 1998 and right flank pain which allegedly resulted from this treatment. After review of this opinion, and contrary to the assertions of the Veteran and his attorney, the Board finds that the May 2014 opinion provides competent, non-speculative evidence regarding the claimed etiology of the Veteran's right flank pain. Thus, the Board concludes that an examination is not required even under the low threshold of McLendon. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Factual Background The record evidence shows that the Veteran was hospitalized at a VA Medical Center from August 25-28, 1998, for a percutaneous nephrostomy tube placement. The hospital discharge summary indicates that, following admission, an attempt was made "to place a cannula in the right collecting system. Access was achieved once but could not pass a guide wire secondary to so many stones in the collecting system." On August 26, 1998, another attempt was made. It was noted that: Ureteral balloon was passed on the right successfully with adequate dilatation of the collecting system. Again, when the right collecting system was cannulated, it was noted that there were many stones in the collecting system which were compacted, making it difficult to cannulate the system and to subsequently pass the guide wire. Multiple attempts were made unsuccessfully to pass the guide wire through the collecting system in to the ureter. It also was noted that "the flexible tip of a guide wire broke off" in the Veteran's retroperitoneal tissue but definitely not in the intrarenal collecting system. It appeared that the guide wire was in the perinephric fat. X-rays of the Veteran's abdomen taken on August 27, 1998, showed that a "metallic suture or a small wire is present in the right upper quadrant, not seen previously," and multiple calcifications over the inferior pole of the right kidney which were unchanged. Signed consent forms for the attempted nephrostomy tube placement are of record. Complications of this hospital stay were listed on the hospital discharge summary as guide wire broken off and tip of guide wire left in the Veteran's right subcutaneous tissue. A review of handwritten notes in the Veteran's VA hospital records from his August 1998 hospitalization indicates that, on August 26, 1998, a VA attending physician stated that he had been present during the entire procedure and that, during the attempted nephrostomy tube placement, approximately 2 centimeter (cm) of .025 guidewire "was broken off + remains in left retroperitoneum." (The reference to the left retroperitoneum appears to be an error as the retained hardware was left in the right kidney and not the left kidney.) Another handwritten note dated on August 27, 1998, indicates that the VA attending physician discussed the "course of events from yesterday incl[uding] retained small [fragment] of wire" with the Veteran. VA echogram of the abdomen taken in September 1998 showed stones in the lower right kidney, a 1.8 cm cyst along the margin of the right lower kidney, and mild dilatation of intrarenal collecting structures in the upper pole. The radiologist's assessment included mild dilatation of the right upper pole intrarenal collecting structures and a small right renal cyst. A subsequent VA echogram taken in December 1998 was stable. Following successful placement of another nephrostomy tube in the Veteran's right kidney, VA renal blood flow and renogram on April 5, 1999, showed 2 surgical clips or sutures in the right upper quadrant which "were not present on previous exam. A large staghorn type renal calculus is identified projecting over the hilum of the right kidney. This appears to be somewhat larger than on previous examination." The impressions included right sided staghorn renal calculus, slightly larger in size. VA renal nuclear scan on April 6, 1999, showed normal perfusion of both kidneys. The impression was retention of radionuclide in the upper pole of the right kidney. The radiologist stated: The appearance of the scan is consistent with obstruction of the upper pole of the right kidney with no evidence of obstruction of the lower pole of the right kidney. This finding is usually seen with a duplicated collecting system. With the history of nephrostomy tube placement on the right it is possible that the obstruction is related to scarring or some other complication related to the tube. VA urogram on April 9, 1999, showed metallic densities in the right mid-abdomen, no calcific densities overlying the renal silhouette, mildly blunted right calices, and free flow of contrast material from the right kidney into the bladder. The impression was no evidence for right-sided ureteral obstruction. In a March 2001 opinion, a VA clinician noted that "a small tip end of a guide wire broke off" during an "attempted percutaneous insertion of instruments into the right kidney for removal of" renal calculus in August 1998. This clinician also noted that an April 1999 x-ray finding of "2 clips or sutures in the right upper quadrant, felt to be either metallic sutures or suture wire perhaps" was "probably the tip of the guide wire which did break off in the perinephric fatty tissue in August of 1998." This clinician concluded that the Veteran's reported right flank discomfort "is almost certainly secondary to the scarring from the surgical procedures per se and has nothing to do with the small fragment of stainless steel which is present in his retroperitoneal space." This clinician also concluded, "The small tip of the guide wire which apparently broke[] off during the procedure in August of 1998 would have no residual ill effect upon the [Veteran]." In a September 2003 opinion, C.N.B., M.D., opined that the Veteran's recurrent right flank pain "is far more likely than not due to imbedded wire fragments left in him after surgery at the VA medical center" on August 26, 1998. Dr. C.B. also stated: This fragment appears to have broken into several smaller fragments all with sharp points, which have the likelihood of exacerbating the painful condition. The act of trying to force the wire into the [Veteran] in spite of considerable resistance from existing kidney stones likely caused the wire to break off in the [Veteran's] right flank. Dr. C.B. concluded that "poor technique (numerous compacted kidney stones made it difficult to pass the guide wire)...and/or poor judgment...caused the guide wire to fracture." Dr. C.B. also concluded that the presence of retained hardware in the Veteran's right kidney and associated right flank pain were the result of actions by his VA surgeons on August 26, 1998, which fell below an acceptable standard of care for medical practitioners. On VA examination in May 2006, a VA examiner reviewed the Veteran's medical history in detail since the attempted placement of a right nephrostomy tube in August 1998. This examiner stated that the Veteran reported experiencing "chronic right flank pain ever since" the August 1998 procedure. "This is not entirely well documented although it does seem that certainly in recent years when asked specifically about pain, he has complained of chronic right flank pain. However, it is not always so apparent" from a review of the Veteran's medical records. This examiner noted the Veteran's history of repeated treatment for multiple kidney stones in both kidneys. X-rays of the Veteran's abdomen showed "[m]etallic wire silhouettes projected about the right renal lower polar region." The radiologist's impression was suggestive of bilateral nephrolithiasis. The VA examiner's impression was retained "broken more than 2 cm nephrostomy guidewire tip...broken off in an attempt at nephrostomy [on] August 26, 1998. Nothing at all appears to have been done incorrectly; the problem with the procedure was described as compacted stones, making it impossible at that time to successfully insert the nephrostomy tube and the broken guidewire tip appears to have been the result[] presumably of that same problem." This examiner noted that there was "no indication of any renal problem from the retained wire." This examiner also concluded that a retained guidewire within the retroperitoneal area "specifically the perinephric fat would ordinarily not be expected to produce symptoms such as chronic pain." This examiner concluded further that the guidewire had not been seen in any radiology studies to which he had access, including x-rays, computerized tomography (CT) scans, or ultrasounds. In an addendum to this examination report, the May 2006 VA examiner stated that a kidney ultrasound and abdominal x-rays did not show the presence of a catheter tip. "There are no kidney abnormalities which would be related to the presence of the presumed remaining catheter tip." VA kidney ultrasound taken in June 2006 showed the right kidney within normal limits, an approximately 3 cm cyst in the lower pole, a 0.6 cm cyst in the mid-pole, and an approximately 9 mm calculus in the mid-pole, and no evidence of hydronephrosis. Private x-rays of the abdomen taken in August 2006 showed renal stones and "two small foreign body densities lateral mid portion right kidney." The Veteran's SSA records, received by VA in November 2006, indicate that he is receiving SSA disability for ischemic heart disease and chronic obstructive pulmonary disease. These records largely are duplicates of his VA outpatient treatment records. VA ultrasound of the abdomen taken in December 2008 showed bilateral renal cysts and bilateral calcifications in the kidneys with no hydronephrosis. VA CT scan of the pelvis taken in May 2009 showed small bilateral renal cysts, bilateral sub-centimeter non-obstructing renal calculi, small well-marginated low density masses in the right kidney "with CT numbers somewhat greater than that which is normally seen with cysts. These lesions are not identified on previous ultrasound." The Veteran testified at his June 2010 Board hearing that, following a surgical procedure to help with kidney stones on August 26, 1998, he was discharged from a VA Medical Center and experienced significant right flank pain. See Board hearing transcript dated June 6, 2010, at pp. 3-5. He also testified that he experienced constant daily right kidney pain. Id., at pp. 9. He finally testified that his surgeons had used bad judgment in attempting to force a guide wire through his right kidney which resulted in the guide wire breaking and leaving metallic fragments in his right kidney and causing his current daily right kidney pain. Id., at pp. 15-16. In an undated opinion received by VA in February 2011, R.J.B., M.D., stated that he had reviewed the Veteran's medical records. Dr. R.B. also stated, "If the Veteran was not informed of the guidewire remaining in the per-nephric fat, that is poor communication. However, a 2 cm guidewire tip in the retroperitoneal space will not cause chronic pain. It is small, very thin...walled off and not mobile. It is not in the kidney. It was reported to be made of soft silicone material." Dr. R.B. also disputed the conclusions of Dr. C.B. in September 2003 because the latter "is not a Urologist or even an Interventional Radiologist who performs percutaneous renal procedure[s]." Dr. R.B. concluded that the Veteran's reported chronic right flank pain "may be due to his vertebral bodies or from scar tissue from his kidney stones or procedures but it is not [due to] the wire." In a May 2014 opinion, L.H., M.D., an independent medical expert, opined that, "during [an] attempted placement of a nephrostomy tube and wire access to the right kidney and ureter on August 26, 1998, the end of a flexible tip guidewire was broken off." Dr. L.H. stated that approximately 2 cm of the guidewire broke off "and remained in the right retroperitoneum in a location that could not be retrieved." Dr. L.H. also noted that, although "a wire type object was seen overlying the right lower pole" on subsequent x-rays, this object "was not seen within the kidney on CT scans and ultrasound examinations of the kidney." Dr. L.H. next opined that there were "no documented kidney abnormalities due to the retained end of the guidewire" following the attempted nephrostomy tube placement in the Veteran's right kidney on August 26, 1998. With respect to the issue of whether the presence of retained hardware (the end of a flexible tip guidewire) was at least as likely as not the result of VA lack of care/negligence, Dr. L.H. opined: No. This is certainly an uncommon event, however, the fact that it occurred is not in and of itself an example of negligence, lack of skill, or carelessness. While placing a nephrostomy tube within a kidney full of 'compacted stones,' it is not beyond the reasonable standard of care to have difficulty traversing the collecting system full of stones into the ureter. Finally, with respect to the issue of whether the Veteran's reported right flank pain following the attempted nephrostomy tube placement was at least as likely as not the result of VA lack of care/negligence, Dr. L.H. opined: No. There is no physiologic or anatomic reasoning for a soft, flexible, small (.025) tip of a guide wire to cause chronic pain. This [Veteran] had multiple other reasons for chronic pain including bilateral and extensive renal stone disease, scar tissue from multiple procedures on the right kidney, and a documented obstruction of the upper pole of the right kidney. None of these are related in any way to the retained fragment. Dr. L.H. concluded in May 2014 that "there is no indication that the guidewire tip breaking was related to negligence, lack of skill, error in judgment, or other fault of the VA." Law and Regulations The Veteran contends that he is entitled to additional compensation under 38 U.S.C.A. § 1151 for right flank pain claimed as due to VA lack of proper care/negligence in providing surgical treatment in August 1998. He specifically contends that VA lack of proper care/negligence caused him to experience right flank pain after a guide wire broke off in his right kidney following an attempted placement of a nephrostomy tube and wire access to the right kidney and ureter by a VA clinician. He also contends that, but for VA lack of proper care/negligence in attempting to place a nephrostomy tube in his right kidney in August 1998, he would not have experienced additional disability due to right flank pain. The appropriate legal standard for claims for compensation under 38 U.S.C.A. § 1151 filed on and after October 1, 1997, as in this case, provides that compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). From the plain language of this statute, it is clear that, to establish entitlement to benefits under 38 U.S.C.A. § 1151, all three of the following factors must be shown: (1) disability/additional disability, (2) VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an unforeseen event. Effective September 2, 2004, 38 C.F.R. § 3.361 relating to section 1151 claims was promulgated for claims filed on or after October 1, 1997, such as this claim. See 69 Fed. Reg. 46,426 (2004) (codified as amended at 38 C.F.R. § 3.361 (2010)). In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. See 38 C.F.R. § 3.361(c)(1). 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA 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. See 38 C.F.R. § 3.361(d). Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for right flank pain, claimed as due to VA lack of proper care/negligence in providing surgical treatment in August 1998. The Veteran contends that he incurred right flank pain following VA surgical treatment in August 1998 when he alleges that a VA clinician improperly attempted to force a nephrostomy tube through his right kidney (which was blocked with kidney stones) and then experienced right flank pain. The record evidence does not support his assertions. It shows instead that, although the complication that the Veteran experienced during an attempted surgical procedure on his right kidney in August 1998 (breaking off of a guidewire tip in the right retroperitonium) was "an uncommon event," it was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA as the independent medical expert concluded in May 2014. (The Board notes parenthetically that, because both parties to the Joint Motion argued that the February 2011 opinion was inadequate for VA adjudication purposes, and because the Board is bound by the Court's September 2013 Order granting the Joint Motion, this opinion was not relied upon in adjudicating the Veteran's 1151 claim and will not be discussed further in this decision.) The May 2014 independent medical expert also opined that that there was "no physiologic or anatomic reasoning for a soft, flexible, small (.025) tip of a guide wire to cause chronic pain" like what the Veteran has reported experiencing since the attempted placement of a nephrostomy tube in his right kidney in August 1998. This expert opined further that there were no kidney abnormalities experienced by the Veteran as a result of the retained guidewire in his right kidney. The May 2014 independent medical expert's opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The May 2014 independent medical expert opinion further is supported by other record evidence. For example, the March 2001 VA clinician opined that the Veteran's reported right flank discomfort "is almost certainly secondary to the scarring from the surgical procedures per se and has nothing to do with the small fragment of stainless steel which is present in his retroperitoneal space." This clinician also concluded that the retained guide wire in the Veteran's right kidney "would have no residual ill effect" on the Veteran. The May 2006 VA examiner opined that there was "no indication of any renal problem from the retained wire" in the Veteran's right kidney following the attempted placement of a nephrostomy tube in August 1998. This examiner also concluded that a retained guidewire within the retroperitoneal area "specifically the perinephric fat would ordinarily not be expected to produce symptoms such as chronic pain." This examiner concluded further that the guidewire had not been seen in any radiology studies to which he had access, including x-rays, CT scans, or ultrasounds. In an addendum to this examination report, the May 2006 VA examiner stated that a kidney ultrasound and abdominal x-rays did not show the presence of a catheter tip. This examiner finally concluded, "There are no kidney abnormalities which would be related to the presence of the presumed remaining catheter tip." As with the May 2014 independent medical expert's opinion, the opinions provided in March 2001 and in May 2006 also were fully supported. Id. The Veteran and his attorney have asserted that the September 2003 opinion from Dr. C.B. is probative on the issue of whether the Veteran experienced additional disability (right flank pain) as a result of VA lack of care/negligence following surgical treatment in August 1998. Having reviewed the record evidence, the Board finds that the September 2003 opinion from Dr. C.B. is less than probative on the issue of whether the Veteran experienced right flank pain as a result of VA lack of care/negligence following a surgical procedure in August 1998. Contrary to the other record evidence showing that a flexible guidewire tip broke off following the attempted placement of a nephrostomy tube in the Veteran's right kidney in August 1998, Dr. C.B. asserted that, in fact, there were "imbedded wire fragments left in [the Veteran] after surgery at the VA medical center" on August 26, 1998. Dr. C.B. further asserted that these "imbedded wire fragments" subsequently "appear[] to have broken into several smaller fragments all with sharp points, which have the likelihood of exacerbating the painful condition" or right flank pain which the Veteran allegedly experienced subsequent to the August 1998 surgery. The basis for these assertions by Dr. C.B. as to what was present in the Veteran's right kidney following the attempted placement of a nephrostomy tube in August 1998 is not clear from a review of the record evidence. As several other clinicians noted in the opinions of record, there were metallic densities seen in the right mid-abdomen (per VA urogram in April 1999), a small fragment of stainless steel present in the Veteran's retroperitoneal space which was the small tip of the guidewire (per the VA clinician in March 2001), metallic wire silhouettes in the right kidney which was the small tip of the guidewire and not seen on a kidney ultrasound and abdominal x-rays (per the VA examiner in May 2006), and x-ray evidence of "a wire type object" not confirmed on subsequent CT scans or ultrasounds of the right kidney (per the independent medical expert in May 2014). The Board finds it highly significant that, although all of the clinicians who offered opinions in this case had access to and reviewed the record evidence, none of them found the presence of "imbedded wire fragments" in the Veteran's right kidney which subsequently broke apart (for a second time) "into several smaller fragments all with sharp points" as Dr. C.B. asserted in September 2003. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the September 2003 opinion from Dr. C.B., the Board finds that the factual premise or factual predicate in the record for his conclusions regarding what was retained in the Veteran's right kidney following an attempted surgical procedure in August 1998 is not clear from a review of the record evidence. The Board also finds that Dr. C.B.'s September 2003 opinion does not reflect "clinical data or other rationale" to support his positive nexus opinion between the Veteran's August 1998 surgical treatment and subsequent right flank pain. In summary, the Board finds that the September 2003 opinion from Dr. C.B. is less than probative on the issue of whether the Veteran experienced additional disability as a result of VA lack of care/negligence following surgical treatment in August 1998. In reaching the above conclusions, the Board acknowledges Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), in which the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. The Veteran is competent to report what he has experienced since August 1998. The Board concludes that his lay statements are less than credible in light of the medical evidence showing no clinical relationship between any right flank pain and August 1998 VA surgical treatment. Contrary to the Veteran's assertions, the medical evidence shows instead that retained hardware (a guidewire) in the right kidney, although uncommon, was a reasonably foreseeable consequence of an attempted nephrostomy tube placement. The medical evidence also shows that right flank pain was not the result of VA lack of proper care/negligence in treating his kidney stones in the right kidney. The Veteran is not competent to offer an opinion regarding any causal relationship between his August 1998 VA surgical treatment and any current right flank pain. While the Veteran's contentions have been considered carefully, these contentions are outweighed by the record evidence showing no nexus between his August 1998 VA surgical treatment and any right flank pain. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for right flank pain, claimed as due to VA lack of proper care/negligence in providing surgical treatment in August 1998, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs