Citation Nr: 18150060 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-40 387 DATE: November 14, 2018 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for an additional disability of urinary retention due to treatment by VA is denied. FINDING OF FACT VA’s medical treatment of and care for the Veteran was rendered with his informed consent and without carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. CONCLUSION OF LAW The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for an additional disability of urinary retention due to treatment by VA have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to January 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Factual and Procedural Background In December 2014, the Veteran noticed a pulling sensation in his right groin after he lifted a pail of paint at a home improvement store. Upon his return home, he observed a bulge in his groin and noticed that the bulge was increasing in size after each meal. To control the bulge, the Veteran wore two layers of briefs for a period of one month. Because this measure did not alleviate his discomfort, the Veteran sought medical care in January 2015 at a VA medical facility, where he was diagnosed with a right pantaloon inguinal hernia. In February 2015, the Veteran was offered an open right inguinal hernia repair with mesh, a surgical procedure. He was informed that: (1) surgical risks included hematoma, infection, a need to explant the mesh, seroma formation, urinary retention, recurrence of the hernia, persistence of the symptoms, chronic pain, bleeding that could require blood transfusion, and injury to the ductus deferens and/or gonadal vessels testicle that may require resection of the testicle; and (2) other medical risks included but were not limited to infection-abscess-sepsis, pneumonia, deep venous thrombosis, pulmonary embolism, urinary tract infection, myocardial infarction, and death. So informed, the Veteran provided consent and was operated upon in February 2015. Following the surgery, he developed medical complications, including urinary retention. Correspondingly, in February 2015, he was started on Finasteride and Tamsulosin, and had a catheter placed and changed on a regular basis. In June 2015, the Veteran filed: (1) a claim to service connection for inguinal hernia; and (2) a 38 U.S.C. § 1151 compensation claim for the urinary retention. In October 2015, the RO denied service connection for inguinal hernia and denied compensation for urinary retention. In January 2016, the Veteran filed a notice of disagreement. In July 2016, the RO issued a statement of the case. In August 2016, the Veteran filed his substantive appeal, stating that he was appealing only the denial of compensation benefits under 38 U.S.C. § 1151.   2. Section 1151 Compensation – Urinary Retention Pursuant to 38 U.S.C. § 1151, disability compensation may be awarded for an additional disability in the same manner as if the disability was service-connected. See 38 C.F.R. § 3.361. However, to qualify for compensation, an additional disability: (1) should be caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA; and (2) should not be a result of a veteran’s willful misconduct or failure to follow instructions. Further, the proximate cause of the additional disability must be either: (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility or staff furnishing the care, treatment, or examination; or (2) an event not reasonably foreseeable. Id.; see also 38 C.F.R. § 3.361(a). To determine whether an additional disability was caused by a medical treatment at issue, VA compares a veteran’s condition immediately before the treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran’s additional disability. A mere showing that a veteran received care, treatment, or examination, and that the veteran has developed an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to a VA treatment, 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(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part in furnishing medical treatment proximately caused the veteran’s additional disability, 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 medical treatment without the veteran’s informed consent. To determine whether there was informed consent, VA considers whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32(c), which provides that informed consent is a 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 to the patient, in a language understandable to the patient, the nature of the proposed treatment, expected benefits, reasonably foreseeable associated risks, complications or side effects, reasonable and available alternatives, and anticipated results if nothing is done. Id. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case do not defeat a finding of informed consent. Finally, whether the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable is, in each case, to be determined based on what a reasonable health care provider would have foreseen. See 38 C.F.R. § 3.361(d). 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 considers 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. In this case, an August 2015 VA examiner opined that it was less likely than not that the Veteran incurred urinary retention as a result of VA treatment. The examiner pointed out that: (1) the Veteran was found to have urinary retention early after his inguinal hernia repair surgery, and his urinary retention was treated in a timely manner, and in a commonly acceptable way; (2) a urinary retention condition is a common complication of an inguinal hernia repair surgery, the likelihood of developing such a condition post-surgery is increased with age, and the Veteran was 63 years old at the time of his surgery; (3) this and other normal complications were disclosed to and discussed with the Veteran prior to the surgery, and he provided consent. In light of the foregoing, the August 2015 VA examiner found that there was no evidence that the Veteran’s additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, or that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, or that there was a failure on the part of VA to timely diagnose or properly treat the Veteran’s urinary retention. The Board finds that the August 2015 VA examiner’s opinion and conclusions the most probative evidence of record on this issue of whether the Veteran incurred urinary retention as a result of VA treatment and whether his urinary retention was a reasonably foreseeable event. The VA examiner’s opinion provides competent and probative evidence that weigh against the Veteran’s claim because the examiner reviewed the Veteran’s claims file and provided a medical opinion that is supported by well-reasoned rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012). While the Veteran attributes fault to VA for his urinary retention, the Board finds that a determination of whether this condition was a result of carelessness, negligence, lack of proper skill, error in judgment, or caused by an event that was not reasonably foreseeable, is a determination medical in nature, and the VA examiner’s opinion is more probative on the subject of standard of care. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Determinations as to diagnosis and causation of a voiding dysfunction requires specialized training and is, therefore, not susceptible to lay opinions on etiology. The Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his current urinary retention and alleged negligent treatment at VA. It should be noted that the Veteran did not assert that VA furnished medical treatment without his informed consent, did not attribute his urinary retention to a particular instance of treatment at VA, and did not provide any additional medical evidence or a medical opinion in support of his contention. The Veteran’s allegations also do not meet Section 1151’s alternative requirement for establishing his right to compensation because the evidence of record shows that his additional disability following the surgery was an event that was reasonably foreseeable, given the August 2015 VA examiner’s opinion that urinary retention was a possible and common side effect of an inguinal hernia surgery, and the Veteran was informed of a possibility of such a complication prior to his surgery. While the Board is deeply sympathetic to the Veteran’s condition, the preponderance of the evidence is against a finding that the Veteran’s urinary retention was an event that was not reasonably foreseeable or a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care professionals who provided treatment to the Veteran. Therefore, compensation for urinary retention under 38 U.S.C. § 1151 is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel