Citation Nr: 1818924 Decision Date: 03/28/18 Archive Date: 04/05/18 DOCKET NO. 16-11 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to compensation pursuant to 38 U.S.C. § 1151 for urinary incontinence caused by a September 25, 1995 radical prostatectomy performed at the VA Medical Center (VAMC) in San Juan, Puerto Rico. ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1952 to December 1953 and from August 1954 to October 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, the Commonwealth of Puerto Rico. In March 2017, the Veteran received notice that the case was certified to the Board. Within the next month, the Veteran revoked Puerto Rico Public Advocate for Veterans Affairs as his representative. He has not indicated that he desires another representative and has demonstrated an intent to individually pursue his case. Thus, the Board will proceed under the assumption that he wishes to represent himself. See 38 C.F.R. 20.1304(a) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. On September 25, 1995, the Veteran underwent a radical prostatectomy at the VAMC in San Juan, Puerto Rico. 2. Since the September 1995 surgical treatment, the Veteran has an additional genitourinary disability, diagnosed as urinary incontinence. 3. The Veteran's diagnosis of urinary incontinence was caused by the September 1995 surgical treatment, but not the result of his willful misconduct, proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program, or proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instant of fault on the part of VA, nor an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for urinary incontinence caused by the September 25, 1995 radical prostatectomy performed at the VAMC in San Juan, Puerto Rico have not been met. 38 U.S.C. §§ 1151, 5102, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. VA's duty to notify was satisfied by June 2013 and January 2014 letters. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the claimant a VA medical opinion and a hearing before the Board. 38 U.S.C. §§ 5103, 5103A. There is no evidence that additional records have yet to be requested. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). 38 U.S.C. § 1151 Under 38 U.S.C. § 1151, compensation is awarded for a "qualifying additional disability" in the same manner as if such additional disability or death were service connected. The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). To be considered a "qualifying additional disability," in these circumstances, a disability must meet two criteria. First, it must not be the result of the Veteran's willful misconduct. Second, the disability must have been either: (a) caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability was either (i) 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 (ii) an event not reasonably foreseeable; or b) proximately caused by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program. Id. To determine whether the Veteran has an additional disability, VA compares the condition immediately before the beginning of the medical or surgical treatment upon which the claim is based to the condition after such treatment has stopped. 38 C.F.R. § 3.361(b). In this case, the Veteran contends that compensation is warranted under 38 U.S.C. § 1151 for his urinary incontinence which was the result of his September 25, 1995 radical prostatectomy. Specifically, he asserts in a February 2013 VA Form 21-4138 that his urinary incontinence is due to a prostate cancer surgery. In the March 2015 notice of disagreement, VA Form 21-0958, he explained that since his prostate cancer surgery in 1995 he has urinary incontinence, he thinks that his incontinency is a side effect, and was told by a VA physician that his incontinence is due to perforation of the sphincter during the surgery. Review of the record includes the following pertinent documents related to the claim on appeal. Prior to September 1995, a March 1973 VA treatment record documents the Veteran's treatment for bilateral colles fracture and contusion with hematoma in the lumbosacral area after a fall from a mango tree. At the time of discharge from in-patient hospitalization for 27 days, it was noted the Veteran developed some fever which was found to be secondary to urinary tract infection which was treated. At a January 1974 VA general medical examination, review of the genitourinary system was noted as normal. On September 25, 1995, the Veteran underwent a radical prostatectomy at the VAMC in San Juan, Puerto Rico. In February 1996, the Veteran was afforded a VA examination for Aid and Attendance. He reported complaints of urinary incontinence since his prostate surgery and wears absorbent materials all the time. Following the clinical evaluation, the VA examiner rendered a diagnosis of "status post operatory suprapubic resection of the prostate secondary to adenocarcinoma, Gleason 3-4 with perineural capsular and anterior margin invasion, with urinary incontinence." Review of VA treatment records show that in June 2000 the Veteran was assessed with urinary incontinence by history, and in September 2001 the Veteran reported having urinary incontinence after the prostatectomy in 1995. In March 2004, the Veteran was afforded an additional VA examination for Aid and Attendance. He reported that since the prostate surgery he suffers from urinary incontinence (urinary dribbling) for which he must use absorbent materials all the time. Following the clinical evaluation, the VA examiner rendered a diagnosis of "radical prostatectomy with residual urinary incontinence." In July 2006, the Veteran was afforded a VA spine examination. Following the clinical evaluation, the VA examiner determined the "Veteran has urinary incontinence due to his prostate adenocarcinoma, which was dissected." Urinary incontinence was also listed among the Veteran's problem list in VA treatment records dated from April 2007 to December 2013. In July 2017, an independent medical opinion was obtained to address the etiology of the Veteran's urinary incontinence. The independent medical examiner (IME) stated that the Veteran's urinary incontinence was caused by the September 25, 1995 radical prostatectomy and there was no evidence that the Veteran experienced any incontinence prior to that date. Nevertheless, the IME concluded that "[t]he proximate cause of the incontinence was not caused by carelessness, negligence, lack of proper skill, error in judgment, or any fault on the department." The IME explained the following: This opinion is based on the well established fact that urinary incontinence is a common side effect of this operation and is seen in virtually all patients for a period of time after this operation. In some patients, this incontinence is permanent and is related to the difficulty of the operation and not due to any fault or negligence of the surgeon or of [VA]. The July 2017 independent medical opinion by the IME is supported with sufficient rationale and based on an accurate factual history. As a result, the Board finds this opinion is adequate and of probative value against the Veteran's claim on appeal. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the Veteran was treated for an urinary tract infection in March 1973, he was initially assessed with urinary incontinence in February 1996. As a result, the Veteran has an additional genitourinary disability, diagnosed as urinary incontinence, since the September 25, 1995 radical prostatectomy. Next, the evidence of record does not show, nor does the Veteran contend, that his additional genitourinary disability was the result of his own willful misconduct. In fact, February 1996, March 2004, and July 2006 VA examination reports and the July 2017 independent medical opinion indicate that the Veteran's current additional disability was caused by the September 25, 1995 surgical treatment. The evidence of record does not show, nor does the Veteran contend, that he was part of an approved rehabilitation program by which his additional genitourinary disability could have been proximately caused. Nevertheless, after review of the probative evidence of record, specifically the July 2017 independent medical opinion, the Board finds that the Veteran's diagnosis of urinary incontinence was not proximately caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instant of fault on the part of VA, nor an event not reasonably foreseeable. Although the Veteran has provided his lay opinion in support of his claim, in this case, he is not shown to possess the level of experience or training needed to provide a competent opinion that requires the understanding of internal physical processes, surgery, and anatomical relationships. The Board concludes that the preponderance of the evidence is against the claim for compensation under 38 U.S.C. § 1151, and there is no doubt to be otherwise resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal is denied. ORDER Compensation pursuant to 38 U.S.C. § 1151 for urinary incontinence caused by a September 25, 1995 radical prostatectomy performed at the VAMC in San Juan, Puerto Rico is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs