Citation Nr: 21001508 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 17-19 760 DATE: January 8, 2021 ORDER Entitlement to service connection for traumatic brain injury is denied. Entitlement to compensation under 38 U.S.C. § 1151 for a right kidney nephrectomy is denied. FINDINGS OF FACT 1. The Veteran does not have a traumatic brain injury that was caused or aggravated in service. 2. The probative evidence of record does not indicate that the Veteran has an additional disability necessitating a right kidney nephrectomy as a result of VA medical treatment or VA failure to timely diagnose and properly treat his kidney or back conditions or that was otherwise proximately caused by a fault on the part of the VA. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for traumatic brain injury have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right kidney nephrectomy have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 30, 1979 to September 30, 1982. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2019. The hearing transcript is of record 1. Entitlement to service connection for traumatic brain injury Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran underwent a VA examination in October 2015. The examiner opined that it the Veteran did not incur a traumatic brain injury (TBI) while in service. The Veteran did incur a head injury in August 1980. However, the examiner reasoned that there was no loss of consciousness and the neurological examination showed normal results. Further, the Veteran’s service treatment records (STRs), to include the exit examination, do not contain any diagnosis of a TBI. In relaying the Veteran’s medical history, the examiner further stated that following the injury, the swollen area on the back of the head was noted to be a hematoma. He did not report any headaches. Further, there was no sequelae from any head injury noted and he was returned to full duty. There was no indication that he had a traumatic brain injury of any sort from the medical record. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). STRs for the head injury in August 1980 do not indicate a diagnosis of TBI. An August 1980 emergency care note indicates that he was conscious upon arrival. An August 1980 consult note indicates a hematoma to the occipital scalp. The Veteran’s September 1982 exit examination, report of medical examination, indicates normal neurologic and psychiatric conditions, as well as a normal head and scalp. In the September 1982 exit examination, report of medical history, the Veteran reported that he was in good health and that he did not have any loss of memory or amnesia, or periods of unconsciousness. The Veteran contends that following the August 1980 injury, he manifested erratic behavior as a result of the claimed TBI. See July 2019 Board hearing. However, in September 1982, the Veteran underwent a psychological evaluation following a disciplinary incident. The mental status exam was noted as benign. Probable character disorder was noted. The physical examination noted an intact neurological examination. The Board acknowledges the lay statements of record and the assertion that the Veteran’s erratic behavior demonstrates that he sustained a TBI. However, the Veteran in this case is not competent to provide a medical opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board affords the medical evidence of record, namely the September 1982 psychological evaluation, greater probative weight. That examination determined that the Veteran exhibited a likely character disorder. The normal neurological examination indicates the lack of a TBI. The Board also acknowledges that VA treatment records indicate symptoms or manifestations of a TBI following a severe 1985 injury. However, this injury occurred years after the Veteran’s separation from service. The medical records do not contain any indication that the Veteran sustained a TBI in service, and further, as noted, the evidence weighs against a finding of a TBI diagnosis or manifestations of a prior TBI during the appellate period. In summary, the Board is sympathetic to the Veteran’s claim. The Board has carefully considered the evidence of record. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for a TBI is not warranted. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a right kidney nephrectomy Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if the additional disability were service connected. The additional disability qualifies for compensation if it is not the result of the veteran’s own willful misconduct, but was instead caused by VA hospital care, medical or surgical treatment, or examination. Additionally, the proximate cause of the additional disability must be attributable to: 1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination; or, 2) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether an additional disability was caused by medical treatment, VA compares the veteran’s condition immediately before the beginning of such treatment to his condition thereafter. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the VA medical treatment resulted in the veteran’s additional disability. The mere showing of an additional disability after receipt of care, treatment, or examination is insufficient to establish cause. 38 C.F.R. § 3.361(c)(1). The continuance or natural progress of a disease or injury for which treatment was furnished is not causation 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). Additional disability caused by the veteran’s failure to follow properly given medical instructions is not causation. 38 C.F.R. § 3.361(c)(3). 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a veteran’s additional disability, it must be shown that the medical treatment caused the additional disability, and 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. 38 C.F.R. § 3.361(d)(1). 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 Veteran contends that the loss of his right kidney is due to the VA’s failure to properly diagnose and treat his kidney condition, as he was repeatedly diagnosed with recurring UTIs that never resolved, when instead he had a significant infection that affected him for more than five years but was never properly identified. He contends that his back condition also contributed to his right kidney condition, as a back fracture caused bleeding and clotting that crushed his drainage tube. He had informed VA personnel of a suspected fracture; however, they did not x-ray the part of his back he believed to be fractured. See July 2015 correspondence; July 2019 Board hearing. Based on a review of the record, the Board finds the evidence preponderates against his claim, and must be denied. As a threshold matter, the record shows that the Veteran’s representative raised an objection to the November 2015 VA examination for failing to address the bleeding from the back fracture. However, the Board finds that the opinion did adequately address the Veteran’s back condition and resulting symptoms, as discussed below. Indeed, the Board finds the November 2015 medical opinion extremely probative as it is very detailed and contains references to the relevant medical literature and citations to evidence contained within the record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It adequately addresses all relevant diagnoses and assertions. The Board does not find that a remand to address these contentions is necessary, as there is no indication that the additional delay to do so would avail the Veteran of any benefit, and the current evidence is adequate for adjudication. The November 2015 VA examiner noted that the Veteran underwent a right kidney nephrectomy in September 2010. The examiner opined that the Veteran’s kidney condition, to include the nephrectomy, was not as a result of the carelessness, negligence, lack of skill, or similar incidence of fault. Rather, the nephrectomy was necessary because the kidney was non-functional and at risk of recurrent pyonephrosis and obstruction. Prior to January 2010, the right kidney had shown severely diminished function at least one year prior and deterioration at least two years prior. This is due to the known consequences of neurogenic bladder rather than any act or omission on the part of VA personnel. Chronic kidney deterioration is a well-known consequence of neurogenic bladder. The examiner cited hydronephrosis as the cause of the nephrectomy. Hydronephrosis was first noted in 2008. An appropriate evaluation was undertaken at the first sign of impairment and VA personnel appropriately managed the Veteran’s chronic urinary tract colonization and periodic episodes of invasive urosepsis. At the time, VA personnel considered but declined the idea of administering a pyelogram. This would not have changed the outcome as hydronephrosis was already present. A pyelogram undertaken in February 2010 following the onset of severe symptoms a month prior uncovered “high-insertion of the right ureteropelvic junction with obstruction” as well as “lead pipe” narrowing; however, even had these particular symptoms been discovered earlier, they would not have changed the course of ongoing therapy or resulted in any specific intervention. As to the Veteran’s assertion that a significant amount of pus was found in his right kidney, which had been present or collecting without detection in his body for years, the examiner noted no medical records to support this assertion. A review of the medical record supports this finding. The Board notes that the examiner properly addressed in the disability benefits questionnaire (DBQ) portion of the examination that in January 2010 purulent material and pus were indeed found, albeit a lesser amount than claimed. However, as addressed in the DBQ and reiterated in the medical opinion, the Veteran underwent regular monitoring, to include annual evaluations of his kidneys, bladder and ureter, since approximately 2000. The examiner noted that the record shows annual or more frequent ultrasounds of his kidneys as well as urine studies. The examiner also noted a diagnosis of chronic urinary tract colonization due to chronic indwelling catheter secondary to paraplegia as of 2006. The examiner also addressed the Veteran’s assertions that his back condition contributed to his kidney condition. The examiner noted in the DBQ that the Veteran had a prior history of a Charcot spine condition. The examiner opined that the medical records do not support the Veteran’s assertion that VA personnel neglected the Charcot spine condition or that it contributed to the onset of hydronephrosis, the acute obstructive event of January 2010, or the nephrectomy. The examiner further stated that, following the Veteran’s fall in January 2010, there was evidence of an acute increase in size of retroperitoneal “fluid collections,” but no evidence that the Veteran’s ureters were being obstructed by this process. Rather, all available documentation shows that the right kidney was acutely obstructed at the ureteropelvic junction (UPJ) with no reports on radiology evaluations of hydroureter, as would be expected if the ureter were obstructed somewhere below the UPJ. The examiner also noted that the Charcot spine issue was first raised by the Veteran in 2006 and appropriately investigated. The Veteran did not raise the matter at his annual evaluations in subsequent years until it came up again in January 2010. According to medical literature, Charcot spine is a rare complication, and its mere presence does not require surgical intervention. The Charcot spine was noted as possible explanation for the abnormal psoas and fluid collections. However, these findings were ultimately deemed a chronic benign process caused by chronic changes in the iliopsoas musculature and not the spine. The examiner also opined that it is less likely than that a failure on the part of VA to timely diagnose or properly treat the condition allowed it to progress. The cause of the nephrectomy is the hydronephrosis. The exact onset and cause of the hydronephrosis is unknown. A 2006 renal ultrasound was normal. The Veteran’s next annual evaluation was delayed at his choice and the condition was diagnosed upon the next annual evaluation in 2008. It was attributed to the Veteran’s practice of clamping his drainage tube, causing pressure in the bladder and kidney. However, the examiner noted that there could be other causes for the hydronephrosis, such as undetected stone disease that leads to scarring in the context of paraplegia. Narrowing, as noted above, is another possible cause, but unlikely due to the absence of hydroureter. The Veteran contends that he properly followed medical instructions regarding his drainage tubes. However, as noted above, any drainage tube clamping may not well be the cause of the hydronephrosis. Thus, whether there was a failure on the part of the Veteran to follow instructions is a moot point. As discussed above, fault may also be established by a failure to show the provision of informed consent. The Veteran has not set forth any arguments related to a lack of informed consent as to the nephrectomy or any other medical treatment. The Board is cognizant of the examiner’s opinion regarding whether the events were reasonably foreseeable. As discussed above, however, the opinion as a whole indicates that these medical developments were not additional disability related to VA care, and as such, the Board finds that the evidence does not reveal additional disability due to VA care. On this basis, the provisions of 38 U.S.C. § 1151 are not met, as additional disability is required. Based on this evidence, the Board finds that there is no causal nexus between VA treatment and the right kidney nephrectomy, including failure to timely diagnose and properly treat the Veteran’s kidney condition or back condition as related to the kidney condition, and no fault on the part of VA in furnishing treatment. The Board has considered the Veteran’s assertions. However, the Veteran is not competent to provide medical opinions regarding these issues, which are medically complex. He does not have the requisite specialized knowledge, training, or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). His assertions were thoroughly investigated by a VA examiner who found them unsupported by the record and medical literature. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Thus, entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting in a right kidney nephrectomy is not warranted. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate 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.