Citation Nr: 20048972 Decision Date: 07/22/20 Archive Date: 07/22/20 DOCKET NO. 14-25 084 DATE: July 22, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a left ureterocalicostomy is denied. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disability is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The competent evidence does not show that the Veteran's claimed residuals of a left ureterocalicostomy, to include flank and abdominal pain, is a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care or due to an event not reasonably foreseeable. 2. The preponderance of the evidence of record is against a finding that the Veteran's claimed left ankle condition is causally related to, or was aggravated by his military service, to include secondary to service-connected left foot disability. 3. The current evidence of record is against a finding that the Veteran's service-connected disability preclude him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The Veteran's claimed residuals of a left ureterocalicostomy, to include flank and abdominal pain is not a result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA or an event not reasonably foreseeable that resulted in the proximate cause of additional disability. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. The criteria for service connection for left ankle condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154; 38 C.F.R. § 3.303, 3.304, 3.310. 3. The criteria for the award of TDIU benefits have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1979 until December 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from the May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In January 2017, the Veteran testified via video conference before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. The issues were remanded by the Board in April 2018 for further development. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a left ureterocalicostomy 1151 Eligibility The Veteran contends he has additional disabilities because of VA medical treatment. When a Veteran has additional disability as the result of VA hospital care, medical or surgical treatment, and the proximate cause of the disability was VA fault, compensation is awarded in the same manner as if the additional disability was service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(a). To establish causation, evidence must show that the VA medical treatment at issue resulted in the Veteran's additional disability. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment was furnished 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 (c)(2). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) rather recently clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a Veteran with the same characteristics as the Veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, his or her representative's informed consent. 38 C.F.R. § 3.361 (d)(1); see also VAOPGCPREC 5-01. Determinations of whether there was informed consent involve consideration of 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. 38 C.F.R. § 3.361 (d)(1). Analysis The Veteran contends that he sustained additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment in regard to a left ureterocalicostomy performed in June 2007 at the Portland, Oregon VA Medical Center (VAMC). The Veteran asserts that since the surgery, he experiences flank and abdominal pain. The June 2007 surgical inpatient notes reflect the Veteran was informed of the expected benefits and reasonably foreseeable associated risks in regard to his June 2007 operation. In an October 2019 medical opinion, the examiner concluded that the Veteran did not experience an additional disability as a result of the medical procedure claimed. After reviewing the medical records, the examiner explained that the Veteran’s pain predated the June 2007 procedure and actually improved afterwards. Further, the examiner explained that the Veteran’s complaint of flank and kidney pain is not medically credible as it is not supported by the medical evidence, physical observation, and are exaggerations that are not common (i.e. kidney swelling to the size of a basketball). The examiner further explained that the subjective complaints from the Veteran appears to describe a reflex sympathetic dystrophy/complex regional pain syndrome. However, as the examiner explained, if symptoms associated with such illness existed, the Veteran would not be able to stand the simple touch of clothes. The examiner noted that the medical records does not note or suggest the Veteran’s inability to wear clothes or a hypersensitivity to touch. Further, regarding a 2016 assessment from a private urologist which suggested that the Veteran’s flank pain could be a result of the surgery, the VA examiner explained that the urologist seems not to be well-versed in neuroanatomy as the assessment is not supported by the weight of the medical literature and the neurological literature in particular. The October 2019 opinion is the most probative evidence of record on account of being based upon a claims file review, the definite nature of the opinions provided, and the detailed rationale provided for the opinion. Accordingly, the under the provisions of 38 U.S.C. § 1151 , the Board finds that the Veteran's claimed residuals of a left ureterocalicostomy, to include flank and abdominal pain, was not caused by the carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA or an event not reasonably foreseeable that resulted in the proximate cause of an additional disability. Here, the medical probative medical opinion does not reflect the Veteran with an additional disability as a result of VA medical treatment. The Board is aware of the appellant's contentions in this case. That said, the questions of whether one disability caused or aggravated another, whether there was negligence or fault in VA treatment, or whether a medical complication of treatment was reasonably foreseeable are complex questions and the province of trained medical providers. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). The Board must thus find that the opinion of the appellant, who lacks medical training or credentials, is not as probative as the opinion provided by a trained and medically educated professional. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for the cause of the Veteran's claimed residuals of a left ureterocalicostomy under the provisions of 38 U.S.C.§ 1151. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected disability The Veteran contends that he has a left ankle disability related to his military service. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has left ankle condition, that is etiologically related to, or aggravated by, an in-service disease or injury. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran's current ankle condition is related to his military service. In a September 2019 VA examination, the examiner opined that the Veteran's left ankle traumatic arthropathy is less likely than not to his military service. The examiner concluded that the Veteran’s left ankle traumatic arthropathy is related to age and a prior (non-service related) injury. The examiner explained that after a careful review of the claims folder, the Veteran's STRs do not demonstrate an ankle injury sustained during active duty. Noting the Veteran undergoing therapy on his left ankle in October 1979, the examiner explained this was due to decreased strength and motion related to the left foot treatment. Based on the above, the Board finds service connection for left ankle traumatic arthropathy not warranted. The Veteran also contends that he has a left ankle condition related his service-connected left foot disability. A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 (a), (b). The question for the Board is whether the Veteran's claimed left ankle condition is related to, or aggravated by, his service-connected left foot disability. The Board finds that competent, credible, and probative evidence is against a finding that the Veteran's claimed left ankle condition is related to, or aggravated by, his military service, to include secondary to a service-connected left foot disability. The September 2019 examiner concluded that the Veteran's left ankle traumatic arthropathy is less likely than not proximately due to or the result of the Veteran's service-connected left foot disability. The examiner explained that Veteran's service-connected left foot disability would not have contributed to this condition. The examiner explained that if anything, due to Veteran's chronic foot condition, his ankle on the same leg would have been protected, as he likely used his right leg to a greater degree to compensate for the left foot disability. Based on the above, the Board finds service connection for a left ankle condition related to a service-connected disability is not warranted. The Board notes that the Veteran may sincerely believe that his left ankle condition is causally related to his military service or service-connected disability. However; the most probative clinical etiology opinion with regard to the Veteran's claimed condition is against such findings. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the claimed disability for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) The Veteran contends that he is unable to obtain or maintain employment due to his service-connected disability. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. § § 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when, in the judgment of the rating agency, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § § 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). As noted above, a total rating for compensation purposes may be assigned where the schedular rating is less than total, when, the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more. Here, the Veteran's current service-connected disability combined is 10 percent. Thus, the Veteran does not meet the schedular requirements. Additionally, the Veteran is currently employed with the United States Postal Service. In the January 2017 Board hearing, the Veteran testified that he was currently employed with the Postal Service. (See Hearing Transcript page 7). Further, VA medical records reflect that the Veteran is still currently employed with the Postal Service. (See March 2020 VA Primary Care Telephone Encounter Note). While the record reflects the Veteran is currently employed there reflects no mention of him receiving any concession based on age or his service-connected disability. Here, the preponderance of the evidence is against a finding that the Veteran is unable to maintain substantially gainful employment due to his service-connected disability. Rather, the claims folder reflects that the Veteran is currently employed and is not receiving any concessions regarding his service-connected disability. Furthermore, while the Veteran's service-connected disability may have impacted his employment; the evidence does not reflect that it impaired his ability to obtain or maintain substantial gainful employment. Based on the above, to include the Veteran's lay statements, the Board finds that TDIU is not warranted.   The preponderance of the evidence is against the Veteran's contention that his service-connected disability is of such severity as to preclude his participation in substantially gainful employment. The Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, Counsel 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.