Citation Nr: 21064743 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-31 809 DATE: October 21, 2021 ISSUES 1. Entitlement to compensation under 38 U.S.C. § 1151 for urethral stricture and associated erectile dysfunction, status-post transurethral resection of the prostate (TURP) surgery. 2. Entitlement to service connection for asteatotic eczema and/or atopic dermatitis (a skin disability), to include as due to herbicide exposure. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for urethral stricture and associated erectile dysfunction, status-post transurethral resection of the prostate (TURP) surgery is remanded. Entitlement to service connection for asteatotic eczema and/or atopic dermatitis (a skin disability), to include as due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1968 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was denied entitlement to compensation under 38 U.S.C. § 1151 for urethral stricture and associated erectile dysfunction status-post transurethral resection of the prostate (TURP) surgery, as well as entitlement to service connection for asteatotic eczema and/or atopic dermatitis in a March 2016 rating decision. The Veteran filed a timely Notice of Disagreement (NOD) in Januar7 2017. The Veteran was issued a statement of the case (SOC), and he filed a timely VA Form 9 in June 2018. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in June 2021 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to compensation under 38 U.S.C. § 1151 for urethral stricture and associated erectile dysfunction status-post transurethral resection of the prostate (TURP) surgery is remanded. The Veteran has claimed that he is entitled to compensation under 38 U.S.C. § 1151 for his urethral stricture and associated erectile dysfunction, following his transurethral resection of the prostate (TURP) surgery. The Veteran was given a Board hearing before the undersigned in June 2021. During the hearing, the Veteran testified that he believes his urethral stricture and sexual problems, including erectile dysfunction, are due to his TURP surgery. The Veteran testified that he may have not given his fully informed consent, and had he known the extent of the risks and complications, he would not have opted for the surgery. The Veteran noted that he did in fact sign an informed consent form, but that he was "persuaded" into completing the TURP procedure by Dr. H., and that "he was a very good salesman." The Veteran testified that although he signed the consent forms, he "heard none of those" complications associated with the surgery, to include erectile dysfunction. The Veteran also argued that he was not given any other options other than surgery, such as increasing his prostate medication Tamsulosin. The Veteran stated that if he had consented to the surgery at all, it was "gurney consent," and he may have been under "moderate sedation" at the time of the consent. The Veteran was also under the impression that Dr. H. would do the procedure, but the procedure may have instead been completed my Dr. F.P. The Veteran's significant other was also present during the hearing, and she testified that she was there following the Veteran's procedure, and there was an issue whereby his colostomy bag was backed up, and that may be an additional complication, which was the fault of the VA treatment. That complication was that the Veteran was told the doctors "tried something different with him, and [they] went too deep towards one side or something," indicating that an accident may have taken place. Essentially, the Veteran has provided three arguments. First, he argued that he did not give his full informed consent to the procedure and was not fully informed of the risks. Second, he argued that there may have been a problem with the procedure itself, to include the post-operative issue with the colostomy bag, or that there were surgical accidents, which may have led to his additional complications of the urethral stricture and erectile dysfunction. Third, the Veteran argued that he should have been presented with additional options, such as increasing his medications, prior to him being persuaded towards surgery. The Veteran is competent to report the symptoms he experiences, such as those associated with his sexual problems and erectile dysfunction. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In pertinent part, 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was not the result of the Veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. 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). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination 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). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 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. 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability (as explained in paragraph (c) of this section); 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 or, in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 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. 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 § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). Considering the Veteran's arguments, the Board notes that it currently has two relevant medical opinions on file, which relate to the Veteran's claim of VA negligence under 38 U.S.C. § 1151. The first opinion is from December 2014 from a VA urologist. The urologist noted that the Veteran has "a bulbar urethral stricture," which is "a rare complication after [TURP] surgery." The medical opinion notes that the Veteran should be given the option of another surgery of the prostate and bladder, although they wrote that "the success of this procedure is less than 50" percent. Other than listing the urethral stricture as a rare complication, no further opinion is provided. The second opinion is also from a VA urologist, signed in January 2015. The examiner noted that they reviewed the Veteran's claims file, to include the TURP procedure which took place. The examiner noted that He underwent a TURP as treatment for [urinary tract symptoms] at the Detroit VA in December of 2011. At the time of surgery, he experienced some common complications of this surgery, including bleeding and urinary retention which required him be discharged with a bladder catheter in place. He also claims that he has a decreased desire for sex and requires medication to achieve an erection; this condition worsened after surgery. The examiner then noted that the urethral stricture is "another known complication of the TURP procedure." They opined that the Veteran experienced known and well-documented complications associated with the TURP procedure. It is unclear if his worsening sexual function is at all related to the procedure. He has a urethral stricture which may be causing at least a portion of his current urinary symptoms. He was offered an intervention (urethral dilation) to treat this condition but may require further intervention if this fails ... therefore, he does not qualify for compensation." Thus, both the December 2014 medical note and the January 2014 medical opinion indicated that the Veteran's urethral stricture is a complication of surgery. The first opinion noted it to be "rare," while the second labeled the complication as "known." While both opinions indicate that the subsequent urethral stricture is a complication that was essentially reasonably foreseeable, neither opinion indicates whether the proximate cause of the Veteran's urethral stricture and erectile dysfunction was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination. 38 U.S.C. § 1151 (A). No further medical opinions have been provided that address this question. Again, one of the three arguments made by the Veteran is that the urethral stricture was caused by an improper surgical procedure and/or his immediate post-operation treatment. See June 2021 hearing transcript. Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran's claim must be remanded so that a VA medical opinion may be provided. The RO is to forward the Veteran's claims file to a VA urologist, or other appropriate specialist, for an opinion as to whether it is at least as likely as not that the Veteran's urethral stricture with associated erectile dysfunction, status-post transurethral resection of the prostate (TURP) surgery is due to carelessness, negligence, lack of skill, error in judgement, or similar instance of fault on the part of the VA healthcare facility. As an aside, the Board notes that the remainder of the Veteran's arguments will be addressed following the completion of that additional development. As it relates to the Veteran's arguments involving his alleged lack of full informed consent, the Board notes that such records have already been associated with the claims file and need not be located/uploaded a second time. See further 38 C.F.R. § 17.32 (c). 2. Entitlement to service connection for asteatotic eczema and/or atopic dermatitis (a skin disability), to include as due to herbicide exposure is remanded. The Veteran has claimed that his skin disability, variously listed as asteatotic eczema and/or atopic dermatitis and/or acne, may be due to his exposure to herbicides while serving in the Republic of Vietnam. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to an herbicide agent if a listed chronic disease manifests to a degree of 10 percent disabling or more, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a). The presumption is rebuttable. 38 C.F.R. § 3.307 (d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of the disease during service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Notwithstanding, service connection for a disability claimed as being due to presumptive exposure may still be established by showing that the disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994) (citing 38 U.S.C. §§ 1113(b), 1116 and 38 C.F.R. § 3.303. The Veteran was given a hearing before the undersigned in June 2021. During the hearing, the Veteran testified that he has had skin problems and acne since his service in the Republic of Vietnam. He testified that he is unsure if he has chloracne, which is a listed presumptive disease under 38 C.F.R. § 3.309 § (e), but that he may be entitled to presumptive service connection for the "other acne-form diseases," that he has dealt with. The Veteran indicated that he is unsure of his exact diagnosis, and that while his claim was listed as being for asteatotic eczema and/or atopic dermatitis, "the service officer put that down [and] I don't even know where he came up with [those]." Essentially, the Veteran argued that he has some form of skin disability, and he believes it may be due to his claimed agent orange exposure. The Veteran is competent to report the symptoms he experiences, such as those associated with his acne and skin problems. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran's claims file contains a disability benefits questionnaire (DBQ) from December 2019. The DBQ is signed by a medical doctor and indicates that the Veteran has current diagnosis of "acne scars on back," and further symptoms of "persistent acne breakouts." A different DBQ, submitted in December 2019 from the same examiner, noted diagnoses of dry skin dermatitis, androgenetic alopecia, and basal cell cancer. A medical record from Direct Path Services from December 2019, indicates however that the Veteran tested negative for basal cell carcinoma. The Board notes that both Decembers 2019 DBQs appear to be contradictory with the listing of the Veteran's skin disabilities, as the diagnoses identified are inconsistent. Furthermore, neither of those disabilities have been confirmed through VAMC records, and neither includes an attached etiological opinion. No further VA examinations are of record, and regardless of whether or not the Veteran's unconfirmed diagnoses are on the presumptive list, no etiological opinions have been rendered on a direct basis for such claimed diagnoses. See Combee, Id. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be given a VA examination whereby his skin disabilities, if any, can be confirmed. Then, for any disabilities identified, an opinion is requested as to whether or not those disabilities are at least as likely as not due to the Veteran's claimed exposure to herbicide agents on a direct basis. See Combee, Id. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant VA and/or private treatment records. Should they exist, associate such with the Veteran's electronic claims record. 2. Forward the Veteran's claims file to VA urologist, or other appropriate specialist, for an opinion on the etiology of urethral stricture and associated erectile dysfunction. The physician shall review the entire claims file. The physician is asked to: (a.) provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that the Veteran's urethral stricture with associated erectile dysfunction, status-post transurethral resection of the prostate (TURP) surgery is due to carelessness, negligence, lack of skill, error in judgement, or similar instance of fault on the part of the VA healthcare facility, or an event not reasonably foreseeable. In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the clinician is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's claimed skin disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: (a.) Does the Veteran have a current skin disability, to include asteatotic eczema, atopic dermatitis, chloracne, and/or any other skin disability? (b.) If the Veteran has a current skin disability, is it at least as likely as not (50 percent or greater) that the Veteran's skin disability was caused by a disease or injury in service, to include his exposure to toxic herbicides while on active duty in the Republic of Vietnam? The examiner is further reminded that service connection for a disability claimed as being due to presumptive exposure may still be established by showing that the disability was in fact causally linked to such exposure. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994) A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Appellant and his Representative an appropriate supplemental statement of the case (SSOC). The Appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.