Citation Nr: 18147896 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 10-35 190 DATE: November 6, 2018 ORDER Entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by chronic exhaustion as a result of VA treatment is denied. Entitlement to compensation benefits under 38 U.S.C. § 1151 for diabetes mellitus as a result of VA treatment is denied. Entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by generalized pain as a result of VA treatment is denied. Entitlement to compensation benefits under 38 U.S.C. § 1151 for headaches as a result of VA treatment is denied. Entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by hypersensitivity to medications and environmental factors is denied. Entitlement to compensation benefits under 38 U.S.C. § 1151 for urinary incontinence as a result of VA treatment is denied. Entitlement to compensation benefits under 38 U.S.C. § 1151 for urinary dysfunction as a result of VA treatment is granted. Entitlement to compensation benefits under 38 U.S.C. § 1151 for retrograde ejaculation/infertility as a result of VA treatment is granted. FINDINGS OF FACT 1. The Veteran was received VA treatment from October 2001 and was later hospitalized at the Bronx VA Medical Center (VAMC) in February 2002. 2. Treatment at the Bronx VAMC in February 2002 failed to meet the applicable standard of care. 3. Evidence of record does not establish that the Veteran has any additional disability manifested by chronic exhaustion, diabetes mellitus, generalized pain, headaches, hypersensitivity to medications and environmental factors, and urinary incontinence, related to that treatment at the Bronx VAMC that was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing reasonable care; or, that any additional disability was due to an event not reasonably foreseeable in furnishing the Veteran’s VA medical treatment. 4. The Veteran currently has additional disabilities, to include urinary dysfunction and retrograde ejaculation/infertility, which were found to be caused by the improper treatment received at the Bronx VAMC in February 2002. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by chronic exhaustion as a result of VA treatment have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 2. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for diabetes mellitus as a result of VA treatment have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 3. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by generalized pain have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 4. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for headaches as a result of VA treatment have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 5. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by hypersensitivity to medications and environmental factors as a result of VA treatment have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 6. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for urinary incontinence as a result of VA treatment have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 7. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for urinary dysfunction as a result of VA treatment have been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). 8. The criteria for entitlement to compensation benefits under 38 U.S.C. § 1151 for retrograde ejaculation/infertility as a result of VA treatment have been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to March 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision. In August 2011, the Veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ) from the Board. A transcript of the hearing is included in the electronic claims file. The Board later notified the Veteran that the VLJ who conducted his August 2011 Board hearing was no longer employed by the Board and advised him of the opportunity to provide testimony at another hearing before the Board. As the Veteran did not request another hearing, the Board can now proceed with adjudication. The Board remanded these matters for additional development in February 2013 and May 2014. The Board requested and received opinions from independent medical experts (IME) dated in April 2016, May 2017, and July 2017 pursuant to 38 C.F.R. § 20.901(d) (2017). 1151 Eligibility Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.358, 3.361 (2017). For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. For claims filed prior to October 1, 1997, a claimant is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S. Ct. 552 (1994) (language of statute was plain and did not require showing of fault). The Veteran filed his claim after that date in 2008. Thus, he must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1) (2012); 38 C.F.R. § 3.361 (2017). In determining that additional disability exists, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b) (2017). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that a veteran received care, treatment, or examination and that that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1) (2017). 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 diagnoses and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2) (2017). 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. 38 C.F.R. § 3.361(c)(3) (2017). 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 VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 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. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1) (2017). The second prong of proximate causation requires that the veteran’s additional disability or death be an event that was not reasonably foreseeable. This fact is 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) (2017). The Veteran has asserted that he suffers from additional disabilities, including a condition manifested by chronic exhaustion, diabetes mellitus, a condition manifested by generalized pain, headaches, a condition manifested by hypersensitivity to medications and environmental factors, urinary incontinence, urinary dysfunction, and retrograde ejaculation/infertility, as a result of VA treatment at Bronx VAMC between October 2001 and February 2002. VA treatment records dated from 2001 to 2002 revealed that the Veteran underwent a series of surgical procedures at Bronx VAMC. In October 2001, two cystoscopies and three bladder biopsies were performed. In November 2001, the Veteran had another cystoscopy, bilateral retrograde studies, and multiple mapping bladder biopsies. He was shown to elect intravesicular interferon instead of surgical intervention as of January 2002. On February 11, 2002, the Veteran underwent another cystoscopy as well as prostate and bladder biopsies. He was discharged that same day and went back to the emergency room on February 14, 2002, with complaints of pain and bleeding but left without being admitted. He returned the next day with persistent gross hematuria eventually going into hemodynamic shock. On February 16, 2002, the Veteran underwent another cystoscopy with bladder fulguration. A review of the VA treatment records reveals a February 16, 2002, report by a treating urology resident that specific care instructions, regarding provision of medications and maintenance of intravenous fluids, were not followed by the nursing staff charged with care of the Veteran during a hospital admission. This resulted in marked dehydration, excessive blood loss, and a need for an emergency surgical procedure. In February 19, 2002, treatment records, the Veteran informed a VA treatment provider that he was going to discharge himself despite being advised that it may be best to stay inpatient until better. The Veteran reported that he would be unable to do so due to an incident which occurred during his stay in the hospital. Additionally, the Veteran has submitted a summary report of contact from the treating VAMC. In February 2002, the Veteran filed a formal complaint regarding the care he received from a specific nurse. He alleged that he was ignored for substantial lengths of time despite activating his call button and sending his roommate to look for help. He was attended to only when he began to yell for help. He also stated that he was not supplied medications in a timely manner. A follow-up note from the hospital indicates that the nurse in question “has been counseled” regarding the allegations. The documentation is consistent with the Veteran’s reports during his August 2011 Board hearing. In a May 2013 VA medical opinion, the examiner made no clinical findings with regard to current disability or disabilities manifested by urinary dysfunction or incontinence as well as sexual dysfunction, including infertility. Further, despite specific Board findings to the contrary and instructions to take note of such, the examiner found that VA treatment had met an acceptable standard of care. In VA examination reports dated in August 2014, a VA examiner listed diagnoses of erectile dysfunction and urinary incontinence with a date of diagnosis in 2002. It was noted that the Veteran had bladder carcinoma complicated with erectile dysfunction and urinary incontinence and that the bladder tumor was in remission. The examiner reiterated that erectile dysfunction was as likely as not attributable to bladder cancer and catheterization for a prolonged period of time. It was also noted that the Veteran had voiding dysfunction and erectile dysfunction of organic etiology, did not have retrograde ejaculation, and had a malignant neoplasm of the bladder that was in remission and currently in watchful waiting status. Current residual conditions or complications due to the neoplasm were listed as polyuria and incontinence. The examiner opined that the Veteran had erectile dysfunction, which was at least as likely as not related to genitourinary problems: bladder cancer, prolonged catheterization, and irrigation of the bladder. In an additional August 2014 VA examination report, despite the Board’s clear finding that the Veteran had received improper care at Bronx VAMC in February 2002, the examiner opined that review of the record did not show failure to provide timely medications and intravenous hydration. It was noted that monitoring was done appropriately, that discharge against medical advice was caused by the Veteran’s denial to stay in the hospital but no improper care. The examiner highlighted that the Veteran recovered and was discharged home and that bladder bleeding at time of catheterization and having a catheter in the bladder was a complication but not a mistake. It was noted that the current disability was not related to any VA improper treatment. Additional November 2015 VA medical opinions were obtained. The examiner made general findings that the Veteran’s current disability was not due to an event not reasonably foreseeable and was not caused or aggravated by the improper care received by the Veteran at Bronx VAMC in February 2002. It was noted that the Veteran developed recurring hematuria, chronic prostatitis, and incontinence after a Foley catheter was removed with the ballon inflated in 1997. The examiner indicated that the Veteran had erectile dysfunction and urinary incontinence since the time of his original hematuria, which he attributed to prolonged and excessive bladder catheterization. It was indicated that the Veteran’s incontinence preceded his VA admission for hematuria. It was further noted that the Veteran signed informed consent for all the procedures and it was documented that all risks and benefits were clearly explained to the Veteran. The examiner highlighted that bleeding or hematuria was a known complication of those procedures and the Veteran was treated appropriately for those conditions. After noting a detailed and thorough review of the medical records, the examiner found that there was no evidence of negligence, carelessness, or improper care in the treatment and management of the Veteran. Without addressing the Board’s instructions concerning improper care and fault on the part of the VA, the examiner concluded that the preponderance of established scientific and medical evidence did not support any relation between the Veteran’s claimed urinary dysfunction or incontinence and sexual dysfunction and/or infertility and the VA surgical procedures and treatment. In the April 2016 and April 2017 IME requests from VA, the Board specifically found that based on the statements of the Veteran’s treating physician in February 2002, the Veteran’s competent and credible report, and corroborating documentation, the proper standard of care was not followed and an element of fault on the part of VA was established. It was indicated that the Veteran became markedly dehydrated and required additional surgery due to the failure of VA personnel to properly administer care and monitor him. In an April 2016 IME opinion obtained by VA, a physician with a specialty in urology found that there were no previously specified urinary complaints other than gross hematuria prior to February 2002. Based on events documented during VA treatment in February 2002, the physician found there was a greater likelihood than not that at least some of the Veteran’s complaints of disability were related to that episode. Finally, the physician indicated that the current disabilities which were related to the February 2002 episode were more likely than not reasonably foreseeable and could have been prevented by appropriate care. An addendum IME opinion dated in July 2017 was obtained from the same urologist who authored the April 2016 IME opinion. The urologist clarified that it was at least as likely as not that the Veteran’s residual disability of urinary dysfunction was due to the care at Bronx VAMC in February 2002. However, the physician also determined that there should be no connection between care at Bronx VAMC and urinary incontinence. Finally, the physician opined that retrograde ejaculation was more likely than not related to the care provided at Bronx VAMC with the emergent need of a bladder fulguration due to the excessive bleeding. It was further noted that infertility was more likely than not related to the retrograde ejaculation, which was more likely than not related to the care at Bronx VA. In a May 2017 IME opinion obtained by VA, a physician with a specialty in internal medicine found that it was less likely as not (probability of less than 50 percent) that a condition manifested by chronic exhaustion, diabetes mellitus, a condition manifested by generalized and persistent chronic pain, or a condition manifested by hypersensitivity to medications was caused or aggravated by improper care during the Veteran’s inpatient VA treatment at Bronx VAMC in February 2002. The physician found that there were no additional residual disabilities related to this development and no evidence that the current condition manifested by chronic exhaustion, diabetes mellitus, a condition manifested by generalized and persistent chronic pain, or a condition manifested by hypersensitivity to medications were due to an event that was not reasonably foreseeable. In the cited rationale, the physician highlighted that there was no evidence that one episode of dehydration that did not result in major organ damage or dysfunction was associated with chronic fatigue syndrome. The Veteran was also shown to have had multiple other reasons to have a state of chronic fatigue and exhaustion, including being a victim of at least two malignancies, receiving chemotherapy and radiation, bleeding repeatedly with findings of anemia, and suffering from chronic uncontrolled diabetes as well as a number of psychiatric conditions. The physician further commented that Veteran was reported to have had diabetes mellitus in the 1990s with suboptimal diabetic control that did not change significantly after the unfortunate events of February 2002. It was noted that there was no evidence that one episode of dehydration that did not result in major organ damage or dysfunction was associated with generalized persistent pain. The Veteran was shown to have had multiple other reasons to have aches and pains, including having invasive malignancies, chronic uncontrolled diabetes with associated polyneuropathy and intractable pain, and a number of psychiatric conditions. The physician also detailed that there was no evidence in the medical record that the Veteran had complained of or had experienced hypersensitivity reactions to several agents. It was indicated that there was no evidence or studies in medical literature that linked hypersensitivity to episodes of dehydration. 1. Entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by chronic exhaustion as a result of VA treatment 2. Entitlement to compensation benefits under 38 U.S.C. § 1151 for diabetes mellitus as a result of VA treatment 3. Entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by generalized pain as a result of VA treatment 4. Entitlement to compensation benefits under 38 U.S.C. § 1151 for headaches as a result of VA treatment 5. Entitlement to compensation benefits under 38 U.S.C. § 1151 for a condition manifested by hypersensitivity to medications and environmental factors as a result of VA treatment 6. Entitlement to compensation benefits under 38 U.S.C. § 1151 for urinary incontinence as a result of VA treatment Upon consideration of all of the evidence of record, specifically the findings contained in the IME opinions dated in April 2016, May 2017, and July 2017, the Board finds that the evidence of record does not establish that the Veteran has any additional disability involving a condition manifested by chronic exhaustion, diabetes mellitus, a condition manifested by generalized pain, headaches, a condition manifested by hypersensitivity to medications and environmental factors, and urinary incontinence, that was proximately due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care; or, that any additional disability was the result of an event not reasonably foreseen. The only evidence to directly support the Veteran’s multifaceted claims are his lay statements that he suffered several additional disabilities as a result of his Bronx VAMC treatment from October 2001 to February 2002. The Veteran is capable of observing symptoms related to his claimed additional disabilities. Nevertheless, these statements are not competent evidence sufficient to establish that he experiences the claimed additional disabilities related to his Bronx VAMC treatment as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA medical personnel or that any additional disability was due to an event not reasonably foreseeable in furnishing the Veteran’s VA medical treatment. Although lay persons are competent to provide opinions on some medical issues, the existence and etiology of the Veteran’s claimed additional disabilities falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims of entitlement to compensation under 38 U.S.C. § 1151 for additional disability, including a condition manifested by chronic exhaustion, diabetes mellitus, a condition manifested by generalized pain, headaches, a condition manifested by hypersensitivity to medications and environmental factors, and urinary incontinence, as a result of VA medical treatment, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 7. Entitlement to compensation benefits under 38 U.S.C. § 1151 for urinary dysfunction as a result of VA treatment 8. Entitlement to compensation benefits under 38 U.S.C. § 1151 for retrograde ejaculation/infertility as a result of VA treatment (Continued on the next page)   As the Veteran’s current urinary dysfunction, retrograde ejaculation, and infertility have been determined to be attributable to the improper care rendered at the Bronx VAMC in February 2002, entitlement to compensation benefits under 38 U.S.C. § 1151 for urinary dysfunction as well as retrograde ejaculation/infertility are warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. D. Deane, Counsel