Citation Nr: 21074521 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-02 075 DATE: December 15, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for genitourinary disorder claimed as bladder obstruction is denied. FINDING OF FACT The appellant did not develop an additional genitourinary disorder, including bladder obstruction from the June 2012 transurethral resection of the prostate (TURP) procedure and bladder cytoscopy that is the result of carelessness, negligence, lack of proper skill, or error in judgment on the part of VA health care providers or due to an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a genitourinary disorder are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served from June 25, 1968 to August 1, 1968. In April 2019, the Board remanded the issue currently on appeal to the agency of original jurisdiction (AOJ) for additional development. 1151 Eligibility The appellant asserts that he is entitled to compensation under section 1151 for genitourinary disorder, claimed as bladder obstruction as a result of negligent VA medical procedures performed in June 2012. A veteran who suffers "qualifying additional 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 (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). In determining whether a veteran has 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. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish causation. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or 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). Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when such care or treatment caused the veteran's additional disability and VA either "failed to exercise the degree of care that would be expected of a reasonable health care provider" or furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1)(i), (ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361(d)(2). The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(2); see Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). In this case, the most probative evidence shows that the appellant did not develop bladder obstruction or any other additional genitourinary disorder as a result of his June 2012 procedure. The record shows his history of benign prostatic hypertrophy (BPH) since at least 2011. An entry dated in early June 2012 shows he also had bladder outlet obstruction symptoms including severe urgency, frequency, nocturia, weak stream, and incomplete emptying. He was started on medication without effect and was not interested in additional medication due to the side effects but did express interest in TURP. On June 11, 2012 the appellant underwent bladder cytoscopy and TURP without complications and was discharged home several days later. The Board notes that prior to the surgery, the detailed risks and benefits of the procedures were explained, and the appellant signed an informed consent form. These risks included injury to the bladder/urethra, the need for continued postoperative catheterization due to inability to urinate, temporary/permanent loss of urinary control requiring the use of pads or diapers and regrowth of the prostate causing blockage. See clinical records from VA Connecticut Healthcare System (HCS) dated in June 2012. Post-operative follow-up notes show that a week after surgery the appellant had no complaints following catheter removal. However, by mid July 2012 he was seen in the emergency room for urinary frequency and a possible urinary tract infection. The following month he was again evaluated in the emergency room for dysuria and urinary retention. In September 2012 it was noted that the appellant continued to have irritative voiding symptoms and had formed a small postoperative bulbar stricture which required a catheter. Entries dated in November 2012, and January 2013, August 2013 and December 2013 note the appellant's status post TURP from June 2012 was complicated by meatal stenosis and small bulbar stricture with episodes of mild dysuria and recurrent urinary retention. The remaining clinical records show a diagnosis of neurogenic bladder since at least 2015. See clinical records from Saint Mary's Hospital dated in May 2015. Also of record is an August 2020 VA medical opinion. After review of the record, the physician concluded that it was less likely than not that the appellant's neurogenic bladder is due to BPH or the June 2012 TURP. Citing to an online medical reference, he explained that TURP does not cause neurogenic bladder and is not considered a common side effect of TURP as it does not involve the neuroanatomy of the pelvis. It was noted that although the appellant related its onset to surgery, the operation report suggests there were no complications and follow-up records were negative for any complications other than unrelated abdominal discomfort. The physician also noted that neurogenic bladder was not confirmed until 2013 or 2014 and the cause was not readily apparent but referred to the appellant's history of cerebrovascular disease with either TIA or stroke. The physician also found absolutely no evidence of a breach in the standard of care by the VA, including timely diagnosis, appropriate treatment, and appropriate performance of said treatment. It was noted that any neurologic damage due to the procedure would have manifested at the time of the procedure or immediately thereafter. See Medical OpinionDisability Benefits Questionnaire (DBQ) dated August 28, 2020. In an addendum to that opinion the physician reiterated that the appellant's neurogenic bladder is not related to his June 2012 TURP procedure and there is no evidence of aggravation of the BPH beyond its natural course. He clarified that because TURP is performed to treat BPH, it is physically impossible for it to cause BPH. In other words, the TURP was performed to eliminate symptoms associated with the enlarged prostate and caused no additional disability. LHI Addendum Report dated October 1, 2020. Based on the above, there is no evidence suggesting that the appellant developed any additional genitourinary disorder following the TURP and cytoscopy procedures that took place at a VA facility in June 2012. The absence of additional disability is reflected in a comparison of the genitourinary symptoms/findings before and after the TURP which do not reveal any additional disability as a result of that procedure. Clinical records clearly establish the appellant's genitourinary symptoms of urgency, frequency, and retention were present prior to his June 2012 procedure and that he continued to have recurrent urinary symptoms thereafter. The appellant was also provided with and signed a consent form advising him that the surgery was not guaranteed to relieve his urinary symptoms including temporary/permanent loss of urinary control and regrowth of the prostate causing blockage. More importantly, the VA physician found no additional disability, including the post-operative neurogenic bladder, that was caused by any breach in the standard of care by the VA. Without evidence of additional disability due to VA medical treatment, there is no need to address the further requirements for establishing entitlement to the benefit sought, including whether there was negligence or other instance of fault on VA's part (or whether there is disability due to an unforeseen event). The Board finds the VA medical opinion and addendum are most probative because the physician reviewed and discussed the relevant evidence, considered the appellant's contentions, and provided a supporting rationale for the conclusions reached. Further, there is no medical opinion of record to the contrary. The Board acknowledges the appellant's belief that he has additional disability as a result of what he believes was negligence on the part of VA, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Although he is competent to testify as to observable symptoms, such as urgency, frequency, and retention his opinion as to their cause, including the extent to which any action or treatment by VA health care providers contributed to this medical problem, simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting that lay persons not competent to diagnose certain complex internal processes, such as cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). To the extent he claims his genitourinary symptoms may have increased, this fact alone does not support the finding of an additional disability. As noted, VA care cannot "cause" the continuance or natural progress of a disease or injury for which the care or 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). There is no showing here of a misdiagnosis or any error in prescribed treatment. For these reasons, the Board finds that the weight of the evidence is against the appeal for compensation under the provisions of 38 U.S.C. § 1151 and the claim must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.