Citation Nr: 21004996 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-44 763 DATE: January 28, 2021 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for additional disability resulting from treatment at a VA facility (in particular from October 6, 2014 to October 23, 2014), to include a hematoma, recurrent urinary tract infections (UTI), and urinary incontinence is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or being housebound is remanded. FINDING OF FACT The evidence is in at least equipoise as to whether the Veteran suffered any new or additional disability associated with a hematoma, UTI, and urinary incontinence as a result of (proximately caused by) VA treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or as a result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a hematoma, UTI, and urinary incontinence are met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1957 to January 1961. The Veteran died in June 2017. See 6/[REDACTED]/2017 Death Certificate. The appellant is the Veteran’s surviving spouse. See 8/2/2017 Correspondence. She is continuing the appeal as a substitute for the claimant under the provisions of 38 U.S.C. § 5121A. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and been before the Board previously. In February 2019, the Board remanded the issues on appeal to obtain an opinion from an independent medical expert who is a nephrologist or urologist and is not employed by VA. The RO obtained an opinion from an independent medical expert; however, there is no evidence that the examiner has the necessary expertise required to render an opinion involving the long-term care of kidney functioning and urinary tract infections. Therefore, in July 2020, the Board remanded the issues on appeal to obtain an opinion from an independent medical expert who is a nephrologist or urologist. This matter has now returned to the Board for appellate consideration. Entitlement to compensation under the provisions of 38 U.S.C. § 1151. A veteran who suffers a disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability … were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). 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). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran’s condition after such care or treatment. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care or medical or surgical treatment furnished the veteran by VA. 38 C.F.R. § 3.361(c). Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of the disability must have been carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. 38 U.S.C. § 1151(a)(1)(A). 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 or surgical treatment caused the veteran’s additional disability 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 medical or surgical treatment without the veteran’s informed consent. Id. Alternatively, the proximate cause of the disability may be an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). 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 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. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The appellant asserts compensation under 38 U.S.C. § 1151 because the Veteran’s health deteriorated to the point where he could not walk due to VA care. The appellant at the November 2018 Board hearing and the Veteran’s daughter, a nurse of more than 25 years of experience, assert that VA erred in failing to remove the indwelling right ureteral stent prior to the Veteran’s October 23, 2014 discharge, and that this resulted in repeated urinary tract infections. Additionally, she notes the development of the left chest wall hematoma, which she believes was the result of a fall during the hospitalization that was caused by a broken lift, and that the blood transfusions used to treat the hematoma adversely affected the Veteran’s kidneys. Further, she contends that she did not provide consent for the Veteran’s intubation, and that his intubation resulted in the Veteran’s deconditioning. Finally, she notes that a private doctor told her that nephrotoxic medications used at the VA hospital were significant in the worsening of his condition, and she argues these medications continued to be prescribed after discharge. The appellant believes that these incidents were all mistakes that either caused or aggravated a disability of the legs, to include loss of use, a respiratory disability, a kidney disability, urinary incontinence, and a disability manifested by memory loss. See 11/1/2018 Hearing Transcript, at pages 4 through 22; see also 3/10/2015 VA Form 21-4138; 7/7/2015 VA Form 21-0820; 7/27/2015 Buddy / Lay Statement; 9/9/2015 NOD. VA treatment records showed that the Veteran presented to the Emergency Department with a history of flank pain associated with nausea and chills for three days. See 3/10/2015 Medical Treatment Record – Government Facility, at page 33. The Veteran was described as critically ill; he underwent surgery for placement of a stent due to a kidney obstruction. Id., at page 22. Additionally, the Veteran had respiratory failure, was intubated, and extubated after 4 days. See 7/20/2015 CAPRI, at page 116. Further, the record showed that the Veteran developed a large left chest wall hematoma, presumably from the Veteran’s positioning with the lift, and required blood transfusion. See id.; see also 3/10/2015 Medical Treatment Record – Government Facility, at page 9; 12/5/2019 CAPRI, at page 6. The record shows that the Veteran suffered an adverse event during the medical procedure at the VAMC. In order for the criteria for benefits under 38 U.S.C. § 1151 to be met, the evidence would need to show that the Veteran has a new level of disability which was caused by the procedure and/or the adverse event and that this was caused by carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA or that such event was not reasonably foreseeable. To address that question, expert medical opinions were obtained. In July 2015, a VA examiner reviewed the record and opined that the Veteran had not suffered additional permanent increased disability due to VA care. See 7/9/2015 C&P Examination. However, the Board found that a new opinion had to be obtained from an independent nephrologist or urologist who is not an employee of VA to avoid the appearance of prejudice as it was from a doctor who works at the same facility where the treatment in question occurred. The Board then requested an independent expert medical opinion on the claim, to include a discussion of the Veteran’s state of health upon entering VA care and upon exiting VA care, and whether there was an additional disability due to VA care. In January 2020 the medical expert noted that the Veteran did not sustain any permanent residual disabilities or worsening of medical conditions as a result of VA care. The medical expert noted that during hospitalization, the Veteran developed an acute kidney failure and a hematoma but stated that these disabilities resolved after discharge. Additionally, the examiner opined that there was no negligence, lack of skill, error in judgment, or similar instance or fault or VA. Further, the medical expert opined that the complications showed in the record were not unexpected due to the Veteran’s pre-existing co-morbidities. See 1/17/2020 C&P Examination. However, the record showed that the examiner was not a nephrologist or a urologist. The Board once again requested an independent expert medical opinion on the claim, to include a discussion of the Veteran’s state of health upon entering VA care and upon exiting VA care, and whether there was an additional disability due to VA care. In October 2020 the medical expert noted that the Veteran did not sustain any permanent residual disabilities or worsening of medical conditions as a result of VA care. The medical expert opined that the Veteran’s co-morbidities played a role with the persistence and potential worsening of the Veteran’s hematoma, recurrent urinary tract infections, and urinary incontinence. Additionally, the examiner opined that the additional disabilities were not caused or worsened due to VA care. See 10/20/2020 C&P Examination. However, the evidence of record established that the Veteran developed additional disabilities following the October 2014 admission. Notably, a letter from Dr. C.S. stated that the Veteran developed a hematoma while hospitalized and that he still experiences some pain on the left side of his arm and difficulty walking secondary to an immobilization syndrome. Additionally, Dr. C.S. stated that “[i]t appears that all of these things could have been prevented, and at this point, I am surprised about the multiple issues [that] appeared for his care at the VA Hospital.” See 7/20/2015 Medical Treatment Record – Non-Government Facility, at page 32; see also 10/23/2015 Medical Treatment Record – Non-Government Facility, at page 12. Furthermore, private treatment records showed that after the Veteran was discharged from the VA hospital, he was admitted with evidence of renal failure and cardiac instability. The Veteran was found to have nephrotoxic medications in his system that had been continued by VA in his recent hospitalization. In addition, the note states that some medication were stopped, and the Veteran’s kidneys improved. See 7/20/2015 Medical Treatment Record – Non-Government Facility, at page 22; see also 3/10/2015 Medical Treatment Record – Non-Government Facility, at page 8. Further, a private treatment record from Dr. G.A. stated that the nephrotoxic medications used at the VA hospital with the combination of nonsteroidal anti-inflammatory drugs and angiotensin-converting enzyme inhibitors in a patient with chronic renal failure stage IV was significant in worsening his condition. See 7/20/2015 Medical Treatment Record – Non-Government Facility, at page 22. VA treatment records from March 2015 indicated that Dr. N.B. suspected that the Veteran may have had a persistent indwelling right ureteral stent for the last 5 months and that it may have been the reason why the Veteran continued to have recurrent urinary tract infections, urinary symptoms, and incontinence, since the stent could have migrated to the urethra, and could have possibly contributed to the worsening renal failure. Id. at page 137. Moreover, as mentioned above, the appellant testified that she did not provide consent for the Veteran’s intubation. The record showed that the Veteran was intubated; however, the record is not clear if the signed consent form covered this procedure. See 7/20/2015 CAPRI, at page 30. The competent and probative evidence is at least in equipoise that the Veteran experienced additional disabilities following the October 2014 VA hospitalization and that these additional disabilities were at least as likely as not caused by VA treatment. Based on the above, and resolving doubt in favor of the Veteran and the appellant, the Board finds that VA treatment caused the Veteran’s additional disabilities following the October 2014 VA hospitalization. 38 U.S.C. § 5107(b). VA’s failure to provide clear evidence of information provided to the appellant weighs against a finding that VA furnished surgical treatment with adequate informed consent from the Veteran. 38 C.F.R. § 17.32(c). Entitlement to compensation under 38 U.S.C. § 1151 is therefore granted.   REASONS FOR REMAND Entitlement to SMC based on the need for regular aid and attendance or being housebound. Finally, because the Board decision herein grants compensation under the provisions of 38 U.S.C. § 1151, the Board finds the initial rating to be assigned for the grant for compensation under the provisions of 38 U.S.C. § 1151 will impact a decision on the issue of SMC based on the need for regular aid and attendance or being housebound. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact’ upon another and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources the two claims are inextricably intertwined). As such, the Board finds that the issue of SMC based on the need for regular aid and attendance or being housebound is inextricably intertwined with the claim for compensation under the provisions of 38 U.S.C. § 1151 and the initial rating that will be assigned upon implementation by the RO. As such, the Board remands SMC based on the need for regular aid and attendance or being housebound matter.   This matter is REMANDED for the following action: Readjudicate the issue of entitlement to SMC. Conduct any development that is deemed necessary. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.