Citation Nr: 20041815 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 16-24 030A DATE: June 18, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for complications of transobturator tape placement, to include sling erosion is denied. FINDING OF FACT The preponderance of the evidence of record shows that the Veteran did not develop complications of transobturator tape placement, to include sling erosion, due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA; or due to an unforeseen circumstance. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for complications of transobturator tape placement, to include sling erosion have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1979 through March 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges the Veteran’s request, through her representative, to secure and associate the Veteran’s active duty service treatment records with the Veteran’s file. See Statement in Support of Claim, May 2020. While the Board agrees that all efforts should be made to associate these records with the Veteran’s file, the Board finds that the records in question are not pertinent to the issue on appeal as the Veteran’s active duty service took place more than 25 years prior to the claimed condition-causing procedure. Therefore, a remand is not necessary. 1. Entitlement to compensation under 38 U.S.C. § 1151 for complications of transobturator tape placement (TOT), to include sling erosion. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service connected. See 38 U.S.C. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran’s willful misconduct, and such disability must be 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. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the veteran’s condition after such care, treatment, or examination is completed. To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event which directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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, medical or surgical treatment, or examination caused the veteran’s additional disability or death, and 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 hospital care, medical or surgical treatment, or examination without the veteran’s, or in appropriate cases, his representative’s, 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 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). In this case, the Veteran asserts that she is entitled to compensation benefits under 38 U.S.C. § 1151 for complications of transobturator tape placement, to include sling erosion. Specifically, the Veteran contends that a transobturator tape placement done on May 27, 2010, and the follow-up procedure on September 6, 2011, did not correct her symptoms of stress urinary incontinence, but instead caused further complications as well as pain and stress. See Statement in Support of Claim, August 2012. Review of the record indicates that after a discussion of the known risks and side effects of the procedure, the Veteran consented to a May 27, 2010, transobturator tape placement, cystoscopy. No complications associated with the procedure were noted and the Veteran was transferred to the Postanesthesia Care Unit in stable condition after the procedure concluded. The record also shows that the Veteran requested and consented to surgical intervention on September 6, 2011, following complaints of abnormal sensation on the right side of her vaginal wall with mild to moderate discomfort and dyspareunia. After proper informed consent was obtained, a surgical procedure was conducted, which resulted in partial removal of the transobturator sling. The surgical report notes that the Veteran tolerated the procedure well and was transferred to the Postanesthesia Care Unit in stable condition after the procedure concluded. No complications were noted, but the Veteran was made aware that she may have worsening of her incontinence and that her pain might not completely resolve even with removal of the tape. In April 2013, a VA examiner reviewed the Veteran’s pertinent medical history, including complaints listed in the medical treatment records. The examiner concluded that the Veteran did not sustain additional disability due to the pelvic sling insertion that was performed. Further, there is no evidence of record that shows the Veteran sustained additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical care. The examiner rationalized that at the initial consultation on April 28, 2010, risks and benefits of the planned procedure were discussed and the Veteran was agreeable to the plan. The Board finds that the foregoing medical opinion is adequate because the examiner reviewed the Veteran’s relevant medical history and offered clear opinions regarding the relationship between the Veteran’s condition and her VA treatment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, no other medical evidence of record indicates that VA was careless, negligent, lacked proper skill, erred in judgment or had other fault that ultimately resulted in the Veteran having an additional disability. Thus, based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran did not sustain additional disability as a result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or as a result of an unforeseen event. In reaching this determination, the Board finds that the Veteran is not competent to provide evidence regarding matters as complex as determining what degree of care is expected of a reasonable healthcare provider. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). Accordingly, the appeal is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.