Citation Nr: 21002815 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 10-44 371A DATE: January 15, 2021 ORDER Compensation pursuant to 38U.S.C.§1151 for chills, fever, and bloody stool as a result of a prostate biopsy is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran experienced residuals of an infection or any additional disabilities manifested by chills, fever, and bloody stool as a result of a prostate biopsy that were proximately due to or the result of VA carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing reasonable care, or to an event not reasonably foreseeable CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C.§1151 for chills, fever, and bloody stool as a result of a prostate biopsy have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1969. The service connection issues come before the Board of Veterans Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of compensation pursuant to section 1151 is on appeal from a June 2009 rating decision. In February 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record. The Board remanded the claim in October 2018 for further development. In October 2020, the Board notified the Veteran that the VLJ who presided over his 2018 hearing was no longer employed by the Board. He was given the opportunity to request an additional hearing. Neither the Veteran nor his representative responded within the time specified in the October 2020 notice. Compensation pursuant to 38 U.S.C. § 1151 for chills, fever, and bloody stool as a result of a prostate biopsy is denied. The Veteran claims entitlement to compensation under the provisions of 38 U.S.C. § 1151. Specifically, he alleges that three days after he had a prostate biopsy in December 2007 at the VA Medical Center (VAMC) in Marion, Il, he had to be treated for an infection, fever, and bloody stools that were caused by his biopsy procedure. He claimed that these were not known complications. See August 2009 notice of disagreement and February 2018 hearing transcript. During his hearing, he also indicated that the infection cleared up and he did not have any current symptoms related to the infection. See hearing transcript, pg. 17. In pertinent part, 38 U.S.C. § 1151 provides compensation for qualifying additional disability in the same manner as if such additional disability were service connected. A qualifying additional disability is one in which the disability was not the result of the Veteran's willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran; and, the proximate cause of the disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151. 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 or medical or surgical treatment caused the veteran's additional disability or death; and (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 informed consent. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). Turning to the facts of the case, the Veteran claims that he suffered an infection from the results of a prostate biopsy at the Marion VAMC in December 2007. The Veteran underwent a VA prostate biopsy on December 5, 2007. He developed an infection in the days after the biopsy. A June 2009, a VA medical opinion was obtained which states that VA personnel were “not careless or negligent. Lack of proper skill, error in judgment or similar fault were not committed. This Veteran had a known complication of needle prostate biopsy.” No VA examination was conducted, and this opinion neither identified the additional disability nor provided a rationale for the conclusion reached. As a result, another opinion was obtained on remand. The Veteran was afforded a VA prostate examination in July 2019. The Veteran reported that he was treated for prostate cancer by having seeds implanted in Seattle, Washington. He claimed that he has not had any further treatment since that time. He suggested that for three years after the treatment, he had to wear adult diapers due to ongoing urinary problems. He reported that his urinary problems subsided after time. As long as he took his diabetic medication, he did not have any ongoing urinary problems. He declined ever having erectile dysfunction. He had not seen a urologist in years. The VA examiner summarized the relevant medical history. More specifically, the examiner noted that in December 2007, the Veteran underwent a repeat prostate biopsy. A review of a post procedure note indictes that he denied any bleeding, he had voided, and was tolerating fluids and diet by mouth. On December 7, 2007, he called to report dysuria and frequency and that he had taken his Cipro post prostate biopsy as ordered. He was assessed to have a urinary tract infection and Macrobid 100 mg twice a day was sent over night through FedEx overnight. On December 8, 2007, he presented with lower abdominal pain, nausea, and bloody stool. He was noted to have an elevated white blood count and admitted for antibiotics and IVF's. He was diagnosed with hematochezia after prostate biopsy. On December 10, 2007, he was admitted for fever, chills, and blood stools three days after prostate biopsy and was assessed to have sepsis and blood in rectum, which was not uncommon after prostate biopsies. He was noted to have prostatic adenocarcinoma Gleason 3+3=6/10. A December 12, 2007 inpatient urology note showed that the Veteran's pathology report was positive, and he did not need any therapy at this time and would follow-up in the office. A review of VA urology note dated December 20, 2007 noted that the Veteran elected to do a watchful and waiting approach. In January 2008, he sought care at a VA emergency room for chronic diarrhea and was started on flagyl. An April 2008 VA urology record documented that his PSA was rising, and he asked if he would be candidate for radical surgery. In June 2008, he elected to undergo brachytherapy and was prescribed Zoladex. He underwent brachytherapy in October 2008. A May 2009 record indicated that his prostate cancer was controlled post-brachytherapy with no ongoing complaints. Another note dated in November 2009 reported that his prostate cancer was controlled post-brachytherapy and that he would be referred back to primary care for ongoing PSA surveillance and to referred back to urology if his PSA reached 10. A May 2010 VA urology note showed that Veteran's prostate cancer was controlled status post brachytherapy, but he had urinary urgency, urge incontinence, and incomplete bladder emptying. He was treated with terazosin. The Veteran reported urinary frequency in June 2010. He sought care for hematuria and was assessed to have hematuria and dysuria and was treated with antibiotics in September 2010 in the VA emergency room. In October 2010, he sought care for hematuria. He was treated for prostatitis and released. In November 2010, he was without complaints of voiding and his prostate cancer was controlled post brachytherapy. A May 2011 record noted that the Veteran had prostate cancer controlled post brachytherapy and terminal hematuria. A urinalysis and cytology were ordered. In a December 2011 VA urology note, the Veteran reported that he no longer had urinary urgency, urge incontinence, or bleeding and his prostate cancer was controlled post brachytherapy. A June 2012 record reported that his prostate cancer was controlled post brachytherapy. An April 2019 record was silent for the claimed condition. He completed treatment such as brachytherapy in October 2008. The examiner reported that the Veteran had had voiding dysfunction that was likely multifactorial in nature due to benign prostatic hyperplasia and diabetes mellitus, type II. The examiner noted that the Veteran claimed that the prostate biopsy December 2007 caused an infection with chills, fever, and bloody stools. Although the examiner opined that the claimed disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner’s explanation of the opinion indicated that the Veteran’s urinary tract infection was reasonably foreseeable. The examiner reported that a review of current medical literature indicates that urinary tract infections are the most common complication of prostate biopsy. Also, the examiner stated that at this time, there were no ongoing residuals of infection. In a clarifying VA medical opinion in January 2020 regarding any residuals of infection/additional disability, the examiner opined that it is less as likely as not the prostate biopsy, claimed as an infection with chills, fever, and bloody stool, was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner explained that a review of the medical record shows the Veteran developed an infection after a prostate biopsy. The examiner noted that an infection after prostate biopsy is not uncommon. The examiner explained that a biopsy needle is passed through the rectal wall into the prostate. The rectum is known to be colonized with bacteria. A review of the medical record shows the veteran was appropriately prepared and had received appropriate prophylactic antibiotic treatment. The examiner added that in many cases, post biopsy infection cannot be avoided. The examiner determined that a review of VA diagnosis and treatment was appropriate and timely, appropriate accepted protocols were followed, the standard of care was met in this case. The VA examiner reported that one of the most common complications from prostate biopsy is infection, including urinary tract infection (UTI), prostatitis, epididymitis, orchitis, bacteremia, and sepsis. Infectious complications from transrectal prostate biopsy have increased in recent years. Reported rates of infectious complications range from 0.1 to 7.0 percent and sepsis rates range from 0.3 to 3.1 percent depending on antibiotic prophylaxis regimens and background antibiotic resistance in various geographic locations. The overall risk of hospitalization after prostate biopsy was1.9 percent in a Canadian study of 75,000 patients undergoing prostate biopsy;21 over 70 percent of those hospitalizations were related to infection, and the incidence increased four-fold over the 10-year study period. Another follow-up study of over 17,000 Medicare patients from 1991 to 2007 noted a 1.1 percent risk of hospitalization after prostate biopsy. UpToDate 2019. The Board accords great probative weight to the combined July 2019 and January 2020 VA medical opinions as they are predicated on a thorough review of the record, which includes medical records concerning the biopsy in question, treatment after the biopsy, and the Veteran's statements, in which he articulated his contentions. Additionally, such opinion considered all the pertinent evidence of record and provided a complete rationale, relying on and citing to the records received. Moreover, the clinician offered a clear conclusion with supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board has considered the Veteran's statements made in support of his claim. In certain instances, lay statements may serve to support findings related to the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran is not competent to state that he has any residuals of infection or additional disability from the prostate biopsy performed by VA in December 2007 or that any residuals of infection or additional disability is etiologically related to any VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical etiological opinion. Thus, the Veteran's assertions are outweighed by the July 2019 and January 2020 medical opinions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). The preponderance of the evidence is against a finding that there was any residuals of infection or additional disability manifested by chills, fever, and bloody stool as a result of the December 2007 prostate biopsy that was reasonably foreseeable based on what a reasonable health care provider would have foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). The probative medical opinion of record reflects that the VA exercised the degree of care that would be expected of a reasonable health care provider. The July 2019 VA examiner stated that medical literature showed that urinary tract infections were the most common complication of prostate biopsy and that the Veteran had no ongoing residuals of infection. The January 2020 VA examiner reported that an infection after prostate biopsy was not uncommon. Also, a review of the medical record shows the veteran was appropriately prepared and had received appropriate prophylactic antibiotic treatment. The examiner indicated that post biopsy infections were unavoidable in many cases. Also, a review of VA diagnosis and treatment was appropriate and timely, appropriate accepted protocols were followed, the standard of care was met in this case. Thus, the highly probative combined July 2019 and January 2020 opinions determined that it was less as likely as not that the prostate biopsy, claimed as an infection with chills, fever, and bloody stool was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress In sum, the Board finds that the Veteran is not entitled to compensation under the provisions of 38 U.S.C. § 1151 for additional disabilities due to 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. As such, the claim is denied. J.K. Barone Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Crohe, 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.