Citation Nr: 1757567	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  14-18 810	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio


THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability of the testicles and scrotum as a result of bilateral hydrocele surgery performed at the Cleveland VA Medical Center (VAMC) on November 8, 2011.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel
INTRODUCTION

The Veteran served on active duty from August 1964 to July 1968.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 RO decision that denied entitlement to compensation under 38 U.S.C. § 1151 for testicular injury with infections and pain. 

A hearing was held in May 2017 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record.

The Veteran appointed a new representative before VA on the day of his Board hearing, and an officer of that organization represented him at his hearing.


FINDINGS OF FACT

1. The preponderance of the competent and credible medical evidence of record shows that a bilateral hydrocelectomy surgery performed at the Cleveland VAMC on November 8, 2011 did not result in additional disability of the testicles.

2. The preponderance of the competent and credible medical evidence of record shows that a bilateral hydrocelectomy surgery performed at the Cleveland VAMC on November 8, 2011 resulted in additional scrotal disability including infection and pain, but this additional disability did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for compensation benefits under 38 U.S.C. § 1151 for claimed additional disability of the testicles or scrotum due to hydrocele surgery have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

VA has duties to notify and assist a claimant with his claim. VA's duty to notify was satisfied by a letter dated in January 2013. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has submitted written statements, and hearing testimony in support of his claim. VA has obtained service treatment records (STRs), VA and private medical records, assisted the appellant in obtaining evidence, afforded the appellant a medical examination, and obtained a medical opinion regarding the claim. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

The Veteran was afforded a hearing before the Board and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

A VA genitourinary examination was conducted in April 2013. The Veteran was unable to appear in person, and the examiner conducted a telephone interview and review of medical records. The examiner stated that existing medical evidence supplemented with the telephone interview provided sufficient information with which to complete the medical opinion. The Board finds that the April 2013 VA examination report and April 2013 addendum are collectively adequate and probative for VA purposes because the examiner relied on sufficient facts and data, reviewed the Veteran's medical records, interviewed the Veteran, considered the Veteran's reported history, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In his May 2014 substantive appeal, the Veteran's former representative asserted that the VA examination was based on incorrect information and requested a remand for a VA examination and second opinion. At his Board hearing in May 2017, the Veteran, his representative and the VLJ discussed the possibility of scheduling another VA examination, which would have to be conducted at a VA facility other than the Cleveland VAMC where his November 2011 surgery was performed, and the Veteran testified that he was unable to report for such an examination. He stated that he would attempt to obtain a private medical opinion from his private physician, and the VLJ held the record open for a period of 60 days to enable him to do so, but he has not submitted any additional evidence.

Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Law and Regulations

A Veteran who suffers disability or death resulting from hospital care or medical or surgical treatment or examination provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability...were service-connected," if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). 

The causation element of § 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs "in a [VA] facility" resulting from VA's negligence. Viegas v. Shinseki, 705 F.3d 1374, 1378 (Fed. Cir. 2013). 

To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361 (b). VA considers each involved body part or system separately. Id.  

To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361 (c)(1). Merely showing that a Veteran received care, treatment, or examination, and that the Veteran has additional disability, does not establish cause. Id.  

Hospital care, medical or surgical treatment, or examination cannot cause the continuation 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. 38 C.F.R. § 3.361 (c)(2). Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3).

The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) 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. 38 C.F.R. § 3.361 (d)(1).

Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). 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. Id. 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).

According to the applicable regulations, "informed consent" means consent that is freely given after a careful explanation by a medical practitioner of a proposed diagnostic or therapeutic procedure or course of treatment. See 38 C.F.R. §§ 3.361, 17.32. The practitioner must explain in language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. Id. 

Analysis

The Veteran contends that he has additional disability of the testicles and scrotum due to bilateral hydrocele surgery on November 8, 2011 at the Cleveland VAMC. In his July 2012 claim, he asserted that the surgery was negligently performed and he had subsequent infections and pain. At his Board hearing, he testified that he had persistent significant swelling of the scrotum since the surgery.

A July 2011 VA urology note reflects that the Veteran complained of a nine-month history of scrotal swelling accompanying total body fluid overload. A scrotal ultrasound showed bilateral hydroceles. He was diagnosed with bilateral hydroceles, which were drained, and lower urinary tract symptoms (LUTS), which were felt to be obstructive in nature. In August 2011, the hydroceles were noted to have returned, and he was scheduled for a hydrocelectomy.

VA medical records from the Cleveland VAMC reflect that on November 8, 2011, 
the Veteran underwent a bilateral hydrocelectomy (scrotal hydrocele removal). A November 8, 2011 urology postoperative note reflects that the Veteran was in stable condition after the procedure. No complications from surgery were shown, and he was discharged the next day. The record reflects that informed consent was obtained from the Veteran on November 8, 2011 prior to the surgery, and a copy of this consent form is of record, with signatures by the Veteran and the surgeon. Known risks of the procedure listed on the form included recurrence of hydrocele, scrotal hematoma, infection, and pain, among others. 

VA medical records reflect that the Veteran failed to report for scheduled follow-up urology visits in late November 2011 and early December 2011.

Private medical records from Fairview Hospital reflect that a December 10, 2011 ultrasound of the scrotum showed prominent diffuse soft tissue swelling, abnormal tenderness and right appearance, overlying the surgical site, and findings indicative of subcutaneous edematous change which was compatible with the presence of acute cellulitis. There was no evidence of abscess. The testicles were within normal limits, and there was no recurrent hydrocele.

A VA urology note dated on December 20, 2011 reflects that the Veteran presented with serous drainage, erythema and pain at the incision site. The diagnostic impression was bilateral hydrocelectomy, fluid recurring on right, with some drainage and erythema. Antibiotics were prescribed. He failed to report for an appointment in January 2012. A March 2012 urology clinic note reflects that the Veteran presented with a recurrent hydrocele, status post bilateral hydrocelectomy in November 2011. This was complicated postoperatively by infection requiring two weeks of oral antibiotics. This seemed to resolve the infection, but the hydrocele had now reaccumulated mainly on the right, to the point that he was unable to urinate without soaking himself due to hidden penis from the swelling. The Veteran said the hydrocele had gotten worse. The diagnostic impression was recurrent right hydrocele. The physician informed him that his diabetes probably contributed to the post-operative infection which complicated his surgery and that this most likely contributed to the recurrence of the hydrocele. He was informed that even with straightforward hydrocele repairs, the risk of recurrence can be up to 10 percent. A scrotal ultrasound was planned. On urology visit in April 2012, it was noted that a repeat scrotal ultrasound in March 2012 was negative for recurrent hydrocele. The diagnostic impression was scrotal edema. An examination in May 2012 showed scrotal edema with erythema; the diagnostic assessment was scrotal edema. Antibiotics and pain medication were prescribed. The physician stated that if the condition was persistent a scrotectomy and thigh pouch would be considered.

A June 2012 private medical record from D.B., MD at Fairview Hospital reflects that the Veteran was seen for complaints of feeling unwell, with leg swelling. He was found to be profoundly hypokalemic. He was also seen for fevers. He reported that he had a history of hydrocele bilaterally for which he underwent repair in November "2012." The Veteran stated that the repair did not go well, as he had repeated infections of the scrotum and had been prescribed antibiotics. On examination, there was scrotal edema, but the Veteran did not have any erythema or warmth. The diagnostic assessment was history of hypertension, obesity, obstructive sleep apnea, diabetes and bilateral hydrocele repair complicated by past infections who was hospitalized with congestive heart failure (CHF). He developed fevers and a leukocytosis while in the hospital. Dr. B. opined that the fevers were due to a left arm cellulitis or a left arm phlebitis at an old IV site. He had an area of erythema and tenderness surrounding a spot on his left arm where he previously had an IV that had infiltrated. Alternative causes for his fevers could be considered if his condition did not improve. Dr. B. stated that other possibilities would include either alcohol withdrawal or a persistent scrotal infection, but his physical examination was not currently concerning for this. He was subsequently diagnosed with right lower lobe infiltrate and left arm cellulitis or phlebitis on IV site infiltration.

A VA genitourinary examination was conducted in April 2013. The Veteran was unable to appear in person, and the examiner conducted a telephone interview and review of medical records. The Veteran complained of swelling of the scrotum since hydrocelectomy in November "2010" at a VAMC. He said the left side was OK, but the right side was very swollen. He reported pain on sitting or climbing stairs. He said that after the surgery, he was seen three times for evaluation, and that at the most recent visit he was told they wanted to castrate him. He denied subsequent treatment other than medication for infection. The examiner summarized reports of June 2011 and March 2012 scrotal ultrasounds, the surgery notes and follow-up visits, and noted that the Veteran did not keep follow-up appointments in late November 2011, early December 2011, and was seen in mid-December 2011, at which time there were complaints of swelling. The March 2012 ultrasound showed thickening of the scrotal wall bilaterally consistent with diffuse edema. There was no fluid collection and no hydrocele. The examiner indicated that the surgery was uncomplicated, and that the Veteran's scrotal edema may be related to the Veteran's comorbidities such as obesity, diabetes, CHF, alcoholism, alcoholic cirrhosis of the liver, and ESRD (end-stage renal disease). The examiner stated that in this case there is no evidence that the Veteran sustained an injury while being treated at the Cleveland VAMC. 

In a subsequent April 2013 addendum VA medical opinion, the examiner stated that the claims file and medical records were reviewed, and there was no objective evidence of testicular injury, including on scrotal ultrasound in March 2012. The Veteran claims that the surgery was not properly done, but there is no evidence in the claims file that the bilateral hydrocelectomy on November 8, 2011 deviated from the normal standard of care. There is no evidence of carelessness, negligence, lack of proper skill or error in judgment in regard to the follow up care after the procedure. As noted, the Veteran was not able to keep or did not keep all of the scheduled follow-up appointments after the surgery. In May 2012 there was no evidence of hydrocele recurrence, but he did have scrotal edema. The Veteran's current symptoms and complaints are related to the scrotal edema, and there is no evidence that the edema was caused by the hydrocelectomy or any deviation from the normal standard of care in this case. As noted above the etiology of the scrotal edema is multifactorial and is most likely related to the Veteran's comorbidities of obesity, diabetes, CHF, alcoholism, alcoholic cirrhosis of liver, and ESRD. In conclusion there is no evidence of a testicular injury or chronic disability resulting from the hydrocelectomy or follow-up care provided to the Veteran in 2011 and 2012.

In his May 2014 substantive appeal, the Veteran asserted that he attempted to keep his VA medical appointments in late November 2011 and early December 2011, but VA refused to let him see his doctor. He asserted that he still had symptoms from his left hydrocele. 

At his May 2017 Board hearing, the Veteran testified that after the November 2011 hydrocele surgery, which was planned as an outpatient procedure, he was in so much pain that he stayed in the hospital overnight. He testified that prior to the surgery, he had swelling in the scrotum, and after the surgery, he still had swelling and pain. He said that there was more tenderness after the surgery than before the surgery. He stated that he had persistent significant swelling in the scrotum ever since his surgery. He said that the swelling was so significant that he could no longer stand to urinate as he could prior to the surgery, and had to be careful when he sat down in a chair to avoid injuring himself. He testified that he tried to visit the urology department but he was unable to see the surgeon who performed his surgery because he was not a VA employee, so he saw a different surgeon instead.

Initially, the Board notes that the threshold element for 38 U.S.C. § 1151  compensation, the presence of a qualifying additional disability, has been met in this case. See Viegas, 705 F.3d at 1377. The Veteran underwent hydrocelectomy surgery at the Cleveland VAMC on November 8, 2011, and the weight of the evidence shows that he had scrotal edema, infection and pain after the surgery. No additional disability of the testicles is shown. The surgery in question was provided by VA. However, even though additional scrotal disability is shown, the Veteran's claim nonetheless fails, because he has not also established there was carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on VA's part in the provision of care. To this end, 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 his informed consent. See 38 C.F.R. § 3.361 (d)(1). Merely having additional disability after VA treatment is not sufficient reason, alone, to grant his claim.

For the reasons explained below, the Board finds that the most probative and persuasive opinion evidence of record is against the Veteran's claim, and thus, entitlement to compensation under 38 U.S.C. § 1151 for infection, scrotal edema and pain due to bilateral hydrocelectomy surgery performed by VA in November 2011 is denied. 

The competent and credible evidence reflects that prior to the November 8, 2011 surgery, the Veteran had bilateral hydroceles, which were successfully removed in the surgery. After the surgery, he failed to report for scheduled follow-up VA urology visits in late November 2011 and early December 2011, and private medical records dated on December 10, 2011 reflect that he had soft tissue swelling and tenderness, and findings compatible with acute cellulitis. He was subsequently treated with antibiotics. A March 2012 VA urology clinic note indicated that the Veteran's condition was complicated postoperatively by infection, which required two weeks of oral antibiotics. The physician informed him that his diabetes probably contributed to the post-operative infection which complicated his surgery. He was informed that even with straightforward hydrocele repairs, the risk of recurrence can be up to 10 percent. A repeat scrotal ultrasound in March 2012 was negative for recurrent hydrocele. The diagnostic impression was scrotal edema. An examination in May 2012 showed scrotal edema with erythema. The evidence is negative for any additional disability of the testicles.

The April 2013 VA examiner opined that the Veteran's current symptoms and complaints are related to scrotal edema, and there is no evidence that this edema was caused by the hydrocelectomy or any deviation from the normal standard of care in this case. The examiner opined that the etiology of the scrotal edema is multifactorial and is most likely related to the Veteran's comorbidities of obesity, diabetes, CHF, alcoholism, alcoholic cirrhosis of liver, and ESRD. The examiner opined that there is no evidence of a testicular injury or chronic disability resulting from the hydrocelectomy or follow-up care provided to the Veteran in 2011 and 2012.

The Board finds that the preponderance of the competent and credible evidence demonstrates that the post-surgical infection and pain were reasonably foreseeable. The informed consent signed by the Veteran prior to the November 2011 surgery lists known risks of the procedure including recurrence of hydrocele, scrotal hematoma, infection, and pain, among others. 

Moreover, the April 2013 VA examiner opined that the medical evidence does not show carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing the hydrocelectomy surgery or postoperative care. These probative VA medical opinions were based on a review of the Veteran's claims file and electronic medical records, considered and addressed the Veteran's contentions, and cited to pertinent clinical findings of record. See Viegas, 705 F.3d at 1377; see also Monzingo v. Shinseki, 26 Vet. App. 97, 106   (2012) (an adequate medical report need not "explicitly lay out the examiner's journey from the facts to a conclusion," so long as the rationale is clear from a reading of the report as a whole). Moreover, the examiner supported his opinion with a comprehensive summary of the Veteran's pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).

The probative value of the VA examiner's opinions is further bolstered by the lack of any probative contradictory medical evidence addressing the relevant issue, and the Board has no independent basis to question the VA examiner's findings absent competent and credible medical evidence to the contrary.

The Veteran has not presented or identified any medical evidence refuting the VA examiners' unfavorable conclusions. The Veteran is competent, even as a layman, to comment on things within the perception of his five senses, such as his symptoms prior to and after surgery. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and 38 C.F.R. § 3.159 (a)(2). However, with respect to the Veteran's lay contentions that his scrotal edema and pain were caused by some fault in the VA medical care, the Board finds that these assertions are outweighed by the competent medical evidence of record. The ultimate probative value of his lay assertions is not determined in a vacuum or isolation, rather, in relation to the other relevant evidence in the file, including the pertinent medical evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Thus, while it is clear that the Veteran sincerely believes that he has developed scrotal edema due to surgical care by the VAMC in Cleveland, as discussed above, the Board finds that the evidence of record does not establish this condition is proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 

The Board therefore finds that the preponderance of the evidence is against the claim of entitlement to § 1151 compensation for claimed additional disability of the testicles or scrotum, due to VA medical care on November 8, 2011. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Accordingly, the appeal must be denied.

ORDER

Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability, claimed as due to VA hydrocele surgery on November 8, 2011, is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs