Citation Nr: 21007644 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-11 605 DATE: February 10, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for infection following a December 2008 right partial nephrectomy is denied. FINDING OF FACT The evidence of record does not support a finding that the Veteran’s post-surgical infection resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or was an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for an award of 38 U.S.C. § 1151 benefits for the infection following the December 2008 right partial nephrectomy have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to July 1981. The Board previously remanded the issue for further development in October 2020. The case has now been returned to the Board for appellate review. Compensation under 38 U.S.C. § 1151 for residuals of post-surgical infection The Veteran seeks compensation under 38 U.S.C. § 1151 for an additional disability from a partial right nephrectomy he underwent at a VA facility in December 2008. A veteran who is disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was 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 the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151 (a). In other words, both causation elements (actual and proximate) must be met for the award of compensation under 38 U.S.C. § 1151. In the October 2020 remand, the Board determined that the Veteran’s post-surgical infection qualifies as an additional disability during the appeal period even though it subsequently resolved. Moreover, the Board concluded it was more likely than not that the Veteran’s infection that occurred one week after the surgery was associated with the surgical procedure. Thus, the issue currently before the Board is that of proximate cause, i.e., whether the post-surgical infection was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the surgical treatment and subsequent hospital care or whether the post-surgical infection was an event not reasonably foreseeable. Proximate causation can be established when it is shown that VA hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (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. Proximate causation can also be established when it is shown that the veteran’s additional disability or death was an event that was not reasonably foreseeable. This fact is 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 38 C.F.R. §§ 3.361 (d)(2), 17.32. The Veteran maintains that despite that he indicated he was not feeling well to his physician and other hospital staff, he was sent home several days after the surgery with only ibuprofen and no medication to control potential post-surgery infection. He developed a high fever with chills and was readmitted to the hospital, where he was treated with antibiotics to treat the infection. He believes that there was an error in judgment when the physician discharged him to his home and not providing him with proper instructions in the care of his wound. See November 2016 Appellate Brief. Here, a review of the evidence of record indicates that the clinician found right renal mass suspicious for cystic renal cell carcinoma from a November 2008 CT scan. A subsequent bone scan was negative for metastases, and the right partial nephrectomy was scheduled and performed on December 18, 2008. A December 2008 spinal cord injury inpatient note indicates that the impact of the surgery on the Veteran’s existing neurogenic bladder was considered and a treatment plan after the recovery from the surgery was formulated. A December 2008 operative report states: The procedure was explained in great detail to the patient, including the benefits and risks of the procedure, including but not limited to bleeding, infection, …. Further, it states that the patient understood these risks and agreed to proceed with surgery. A December 2008 nursing operative note indicates that the Veteran verbalized understanding of the consent signed for blood transfusion and procedure, which was verified and confirmed from an ID band and CPRS. It notes that valid consent/ID band was confirmed by hospital staff. Post-surgery treatment records indicate that the Veteran had no acute events, though he was complaining of constipation without nausea or flatus. Pain was under control, and he was ambulating without difficulty. A December 2008 discharge summary indicates that there were no immediate complications. He was monitored post-operatively in the SICU and was transferred to a step-down unit, where his diet was slowly advanced. By the day of the discharge, the Veteran was tolerating regular diet, pain was under control, and he had no complaints. He was discharged with Vicodin and Colace and instructed with a followup appointment with urology clinic in 2 weeks. The Veteran was sent home with JP drain in place. The Veteran was advised to come to the emergency room in case of fevers, chills, severe abdominal/flank pain, inability to tolerate medication by mouth, inability to urinate, and other worrisome signs. The discharge occurred on December 22, 2008. According to the Veteran, he expressed that he did not want to be discharged from the VAMC following the completion of the surgery. The basis for such request is not outlined in the VA treatment records, but he testified at a June 2011 decision review officer hearing that he told the hospital staff that he was not feeling well. On the next day, the Veteran called and stated the JP drain was having only 20 cc fluid without leakage. He was instructed on how to keep the bulb in suction mode and to call the urologist in the morning. The Veteran was admitted to the hospital for abdominal pain lasting for one day on December 26, 2008. He had worsening diffuse abdominal pain on the right side greater than the left, nausea, dizziness, chills, and fever. Morphine was administered, and the pain was reduced. The clinician stated the Veteran appeared to have a urinary tract infection and possible urosepsis. He was placed in the ICU for close observation. His fevers resolved and was transferred to the floor. The Veteran remained afebrile for more than 24 hours, and he was discharged on January 1, 2009. The Board finds that the evidence preponderates against finding that the Veteran had any additional disability pursuant to the requirements of the proximate cause under the provisions of 38 U. S. C. § 1151. The Board acknowledges that the Veteran was reportedly not feeling well at the time when he was discharged. However, the weight of the evidence is against finding that VA failed to exercise the degree of care that would be expected of a reasonable health care provider at the time of discharge or during the followup care subsequent to the readmission. The documentation during the immediate recovery after the surgery until the first discharge does not indicate any abnormal signs for an infection or other post-surgery complications. When the Veteran had concerns for his JP drain after discharge, he called VA and was advised on the use of the JP drain and to contact a urologist the next day. Moreover, the evidence indicates that the Veteran was re-admitted to the hospital for intensive care one day after the post-surgical infection manifested; it was treated properly and he recovered from it after a week of treatment at the hospital. On this point, a November 2020 medical opinion, provided by a health care provider who was not involved in this event, states that it is less likely than not that any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA administering treatment. The rationale was that the Veteran was clearly advised before the surgery about the risk of infection due to surgery and postsurgical complication, that he did not suffer from any intra or postoperative complications prior to discharge, and that the Veteran was asymptomatic, afebrile, and had normal urine output at the time of discharge. The examiner indicates that the Veteran’s post-surgery urinary tract infection was due to neurogenic bladder, as urinary tract infections are one of the most common morbidities in individuals with neurogenic lower urinary tract dysfunction. The Board affords probative weight to the medical opinion, as it is provided by a health care provider and the rationale is supported by the facts found in the evidence. The Board acknowledges the competent and credible lay statements from the Veteran regarding symptomatology. Nevertheless, the Veteran is not competent to opine on what a reasonable medical care provider would do or choose for medical treatment, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). No medical evidence, to include medical opinion, in the record supports his claim. Lastly, as documented in the evidence and noted also by the November 2020 examiner, prior to the surgery, the Veteran provided informed consent to the surgery and he was advised about the risk of infection due to surgery. Thus, the weight of the evidence is against finding that VA furnished the surgery without the Veteran’s consent or that the post-surgical infection was an event that was not reasonably foreseeable. Accordingly, the preponderance of the evidence of record is against a finding that carelessness, negligence, lack of proper skill, or error in judgment on the part of VA caused additional disability, post-surgical infection. The weight of the evidence is for finding that the surgery was conducted with informed consent by the Veteran.   In addition, the preponderance of the evidence of record is against a finding that the post-surgery infection was an event not reasonably foreseeable. Therefore, the claim for entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for post-surgery infection must be denied and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.