Citation Nr: 18141312 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-04 039 DATE: October 10, 2018 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for excessive urinary tract infections (UTIs) and bladder stones, is denied. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for depression, adjustment disorder, and anxiety, is denied. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for left wrist tendonitis is denied. FINDINGS OF FACT 1. The Veteran does not have an additional UTI or bladder stone disability related to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment. 2. The Veteran does not have an additional psychiatric disability related to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment. 3. The Veteran does not have an additional left wrist disability related to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment. CONCLUSIONS OF LAW 1. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for excessive UTIs and bladder stones due to care provided by the VA have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for depression, adjustment disorder, and anxiety due to care provided by the VA have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 3. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for left wrist tendonitis due to care provided by the VA or any medications prescribed by VA have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in July 2013, and the VA issued a statement of the case in December 2014. The Veteran timely appealed the matter to the Board in a January 2015 VA Form 9 and elected not to undergo an optional hearing. § 1151 Eligibility The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). In pertinent part, section 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service- connected. A qualifying additional disability is one in which the disability was not the result of the Veteran’s willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of 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 was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151. 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 or medical or surgical treatment caused the Veteran’s additional disability or death; 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 informed consent. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361 (b). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(1), (2). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a 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. 38 C.F.R. § 17.32. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32 (d). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361 (d)(1). 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). Factual Background The Veteran claims that after he was having trouble with urination, a VA urologist suggested self-catheterization as the best plan of action for his voiding issues. The Veteran underwent 9 months of having to self-catheterize four to five times a day, which he claims caused him pain and suffering as well as caused his psychiatric symptoms of depression and anxiety. The Veteran contends that after he was seen by a private urologist, he was recommended for surgery right away, which helped resolve his voiding issues. The Veteran also alleges that the medications he was prescribed by the VA for his UTIs caused tendon damage in his left wrist. VA treatment records from October 2009 show that the Veteran was seen in relation to a prostate cancer diagnosis. His most significant stressor was adjustment to treatment. A history of depression was noted. In November 2009, VA treatment records show that the Veteran complained of severe dysuria and nocturia. He was referred to urology for recurring urinary stricture. In December 2009, VA treatment records show that the Veteran was treated for urethral stricture status post multiple dilations with the last one in November 2009 during a cystoscopy. He had one failed TOV afterwards. VA treatment records from January 2010 show that the Veteran had a foly catheter in for two weeks and was diagnosed with a UTI before leaving the New York area. An assessment of a UTI was provided with the examiner noting that he called and spoke with the previous urologist at the VA who recommended Macrodantin for the resistant pattern. In February 2010, the Veteran called requesting to be seen at the VA because he had a catheter in since December. In March 2010, a voiding trial was ordered by a VA urologist. The nurse noted that the Veteran was given the option of a CIC or having a catheter reinserted. The Veteran chose the catheter. In April 2010, VA treatment records show that the Veteran came in very upset regarding his care. He was upset that he personally has to cauterize himself to urinate and that other methods were not discussed with him. He was very anxious and depressed over his medical issues. In May 2010, VA treatment records show that the Veteran had concerns regarding his anger, pain, decreased ability to sleep, and frustration as he compared how he was before cancer treatment for his prostate. The Veteran reported recurrent UTIs, pain, and having to put tubes in his penis to make himself void. He reported restless sleep and that he is affected by the pain which also affects his mood. The VA examiner noted increased anxiety. VA treatment records from June 2010 show that the Veteran was seen again for urinary retention issues. The examiner discussed with the Veteran that it will require future management and no quick fix was available. The examiner noted that they would try a coudé catheter to reduce urethral symptoms with various size catheters. The examiner told the Veteran that he needs to learn to cope with the disease and he would do his best to help him in the future. The VA examiner also offered him the option of an outside opinion anytime he wishes. In August 2010, VA treatment records show that in response to the Veteran’s request to see an outside urologist, the VA urologist obtained copies of records from the VAMC in New York pertaining to prostate cancer and subsequent post radiation therapy urethral stricture. VA treatment records from September 2010 show that the Veteran complained the doctors at the VA were not addressing his medical condition and the urologist was not being responsive to his needs or to the plan of action outlined for him. The Veteran reported that he thought his condition was getting worse and affects his sleep. He continued to struggle with irritability and his pain was noted to be affecting his psychological. Private treatment records from September 2010 show that the Veteran was having problems urinating. He was diagnosed with urethral stricture and urinary retention. He was treated empirically with Cipro and was scheduled for a cystoscopy to rule out obstructive causes to his urinary retention. VA treatment records from September 2010 show that the Veteran was upset with his conditions. The VA urologist noted that in June 2010 he was offered an outside referral but he did not accept at that time. The Veteran was noted to be extremely angry. On the last visit, the VA urologist noted that he was given the records from New York which essentially claimed that no surgery could be done. Private treatment records from October 2010 show that the Veteran had a cystoscopy. He had a urethral stricture which required DVIU in 2009 in New York. The Veteran was noted to void very little on his own. The Veteran elected to proceed with cystolithalopaxy and transurethral resection of the prostate. Private treatment records from January 2011 show that the Veteran complained of left thumb and wrist pain. An impression of left wrist de Quervain’s tendinitis was provided. The private examiner discussed steroid injections, but the Veteran was adamant about not wanting that. Private treatment records from May 2011 show that at a six month follow up status post TURP in October 2010, the Veteran was noted to have excellent durable results so far. He had little to no LUTS and no incontinence. An assessment of urinary obstruction, unspecified; and urinary retention was provided. In a June 2013 VA opinion, a VA examiner found that there was no carelessness, negligence, lack of proper skill, error in judgment, or any other instance of fault by the VA in furnishing hospital care or medical or surgical treatment or examination. The VA examiner found that the disabilities were due to the claimant’s willful misconduct, as the Veteran was noted to be apparently abusive and confrontational on each visit and apparently had similar episodes in New York. The urologist noted that the GU evaluation was not initiated, presumably due to the Veteran’s confrontational nature. Of note, Dr. C. offered outside referral but was turned down by the Veteran. There is no note that outside referral was turned down as the Veteran claims. No hospital care or medical treatment was furnished without the Veteran’s informed consent. The urologist noted no long-term disability seen other than his history of prostate cancer. On review, the urologist noted that the Veteran experienced no permanent physical disability. He was noted to be voiding with acceptable residuals. Any mental health issues were diagnosed at close to the time of the initial GU consult at WJB Dorn VA hospital, and not as a result of it. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for excessive UTIs and bladder stones; and depression, adjustment disorder, and anxiety Based on the above, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 for excessive UTIs and bladder stones; and depression, adjustment disorder, and anxiety, is not warranted. The medical evidence of record does not support the Veteran’s claims, as there is no evidence of an additional disability for either excessive UTIs and bladder stones or for depression, adjustment disorder, or anxiety, as defined by the VA, as a result of VA medical treatment or care. The June 2013 VA examiner specifically opined that there was, in fact, no additional disability caused by the VA medical treatment. After a review of the medical file, the June 2013 examiner noted no long term or permanent disability and noted that any mental health issues were diagnosed at close to the time of the initial GU consult, but not as a result of it. The June 2013 examiner also found that the disabilities were due to the Veteran’s willful misconduct, as the Veteran was noted to be apparently abusive and confrontational on each visit and apparently had similar episodes in New York. The Board further notes that the evidence does not indicate that any asserted post-treatment residuals or psychiatric issues were proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility furnishing the care, treatment, or examination, or an event not reasonably foreseeable. There is no medical evidence indicating that the Veteran has an “additional disability,” as defined by VA, as a result of VA treatment for the Veteran’s excessive UTIs and bladder stones. The Board acknowledges that the Veteran was in pain and discomfort during his 9 months of self-catheterization. The Board also understands the Veteran’s claims that he suffered from anxiety and depression as a result of this process. Nevertheless, this does not warrant entitlement to compensation under 38 U.S.C. § 1151, as there is no evidence that the self-catheterization for voiding purposes caused any additional disability, either by excessive UTIs, bladder stones, or psychiatric issues, as defined by VA regulations. As the record does not demonstrate that the Veteran has additional excessive UTIs, bladder stones, or psychiatric disabilities as a result of having to self-catheterize for voiding purposes, the Veteran’s claims for compensation must be denied and no further analysis of the criteria for entitlement to compensation under 38 U.S.C. § 1151 is necessary. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for left wrist tendonitis Based on the above, the Board finds that compensation under the provisions of 38 U.S.C. § 1151 for an additional disability of left wrist tendonitis resulting from medications prescribed for excessive UTIs and bladder stones is not warranted. The Board has carefully considered the lay statements and testimony of the Veteran. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Nevertheless, as to the specific issues in this case regarding whether there is additional disability due to some fault on part of care provided by VA, the Board finds that this determination falls outside the realm of common knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (indicating that lay persons not competent to diagnose cancer). Despite the Veteran’s contentions to the contrary, the Board finds no evidence in the record providing a competent link between the Veteran’s medications prescribed by the VA for his excessive UTIs and bladder stones and his left wrist tendonitis. Therefore, it cannot be found that the Veteran has any additional disability due to carelessness, negligence, lack of proper skills, error in judgment, or similar instance of fault on the part of the VA. As a consequence, the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel