Citation Nr: 18144135 Decision Date: 10/25/18 Archive Date: 10/23/18 DOCKET NO. 17-02 194 DATE: October 25, 2018 ORDER Compensation under 38 U.S.C. § 1151 for loss of bladder control is denied. FINDING OF FACT The Veteran's loss of bladder control is not proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA surgical treatment in December 1998; or that the loss of bladder control was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for loss of bladder control from VA surgical treatment are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran appeals an October 2013 rating decision. In June 2018, the he testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). At the hearing, the undersigned clarified the issue on appeal and made inquiry as to the existence of outstanding evidence as to the issue being decided. Although the undersigned held the case open for 90 days to enable the Veteran to obtain evidence in support of his claim, no evidence has been received since the hearing and the 90-day period has expired. The actions of the VLJ comply with 38 C.F.R. § 3.103 In December 1998, VA performed radical retrograde prostatectomy with a bilateral pelvic lymph node dissection on the Veteran because he had prostate cancer. He developed incontinence of urine and in July 2000 underwent placement of artificial urinary sphincter. In August 2012, VA received his claim for compensation under 38 U.S.C. § 1151, wherein he alleged that his urinary sphincter muscles were cut by mistake during the 1998 VA prostate surgery, which caused him to lose control of his bladder. He testified in June 2018 that he has had incontinence of urine since that surgery. He argues that there was malpractice on the part of the surgeon, who was a resident. He argues this resident did not have sufficient experience to handle the procedure, and that it was lengthy and complex. He urges that the fact that there was cutting of the sphincter muscles and incontinence establishes fault, accident or negligence on the part of VA. At the June 2018 Board hearing, the Veteran reported that the resident came into his room after the surgery and told him he was sorry but it was ‘awful dark down there’ when he did the surgery. The Veteran suspected something might have gone wrong based on these remarks. He believes he probably could have had better care at a private hospital rather than at this teaching hospital. Entitlement to compensation under 1151 for loss of bladder control Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death 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 if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) 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. §1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The Veteran contends that his loss of bladder control is the result of VA surgical fault, negligence or accident during the December 1998 prostatectomy. The question for the Board is whether it is at least as likely as not that the Veteran sustained additional disability that was not the result of his willful misconduct; and the disability was caused by VA surgical treatment; and the proximate cause of the disability was either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment, or (b) an event not reasonably foreseeable. The Board concludes that, while the Veteran underwent VA surgery in December 1998 to treat prostate cancer, and he sustained additional disability (e.g. urinary incontinence, requiring the insertion of an artificial sphincter), the preponderance of the evidence weighs against finding that VA's surgical treatment resulted in qualifying additional disability because his post-operative condition was not proximately caused by either (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. § 1151; 38 C.F.R. § 3.361. Also, the preponderance of the evidence weighs against a finding that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the surgical treatment without the Veteran's informed consent under the requirements of 38 C.F.R. § 17.32. 38 C.F.R.§ 3.361(d)(1); McNair v. Shinseki, 25 Vet. App. 98 (2011). Further, the preponderance of the evidence is against a finding that the proximate cause of the Veteran's claimed disability was an event not reasonably foreseeable. 38 C.F.R. § 3.361 (d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). The operative report of the December 1998 prostatectomy reflects the procedure was performed to treat prostate cancer. It notes that the Veteran had a deep and small pelvis and that the procedure took 6 hours. There were no complications though it was noted to be a difficult procedure. He was discharged five days later and told to return in eight days for catheter and staple removal. He had post-prostatectomy urinary incontinence and in July 2000 underwent placement of artificial urinary sphincter without complications. However, some degree of incontinence has continued, and he uses absorbent pads as a result. An October 2013 VA medical opinion from a VA physician reflects that, while the Veteran has additional disability, urinary incontinence, it was not caused by either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment, or (b) an event not reasonably foreseeable. The physician was asked the following question: Was the (disability or death) caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA; or was it due to an event not reasonably foreseeable. That is, was the (disability or death) one that would not be reasonably anticipated or expected by a health care provider who utilized the degree of care a prudent or competent person so engaged would exercise? The examiner offered the following opinion, against the claim: Examiner has reviewed the operative report and notes the following; surgery took approximately 3 x the average operating time for the procedure the surgeon, a urology resident, in his operative note describes a technically difficult procedure because of a deep, narrow pelvis. The resident was assisted by a seasoned urology staff surgeon throughout the procedure. While the surgeon was a resident, there is no indication in the operative report suggesting negligence or malpractice. Further, the Veteran states that had he known of this complication (of incontinence) possibility, he would not have submitted to surgery; however, in his signed operative report the risk of urinary incontinence was clearly stated. His urinary incontinence post-operatively has been severe and his external sphincter implant helped, but some incontinence persists and is getting progressively worse. The Board considered the Veteran's statements and testimony in this matter. While the Veteran believes that there was fault, accident or negligence in the performance of the VA surgical treatment in December 1998, he has provided no competent medical evidence to corroborate his belief and he lacks the requisite medical knowledge and expertise to opine whether the surgical outcome reflects the product of negligence or a foreseeable outcome given the nature of the surgeries and the Veteran's medical condition at the time of the surgeries. In other words, the issue is medically complex and beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran's medical opinion has no probative value. The Board assigns greater probative value to the October 2013 VA medical opinion as this opinion was prepared by a skilled, neutral medical professional after a review of the relevant medical records and because it includes a complete rationale for the opinions expressed. The Veteran has not provided any other medical opinion to weigh in this matter.   On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107 (b).] H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL