Citation Nr: 21009531 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-30 070 DATE: February 22, 2021 ORDER 1. Entitlement to compensation under 38 U.S.C. § 1151 for abdominal inflammation due to a March 2006 partial nephrectomy at the Denver, Colorado VA Medical Center (VAMC) is denied. 2. Entitlement to compensation under 38 U.S.C. § 1151 for groin inflammation due to a March 2006 partial nephrectomy at the Denver VAMC is denied. 3. Entitlement to compensation under 38 U.S.C. § 1151 for nerve and muscle damage due to a March 2006 partial nephrectomy at the Denver VAMC is denied. FINDING OF FACT It is not shown that the medical professionals involved in the Veteran’s partial nephrectomy at the Denver VAMC in March 2006 failed to exercise the degree of care that one would expect from a reasonable health care provider or that he has developed an additional disability that was not a reasonably foreseeable result of the medical procedure and related care at that facility. CONCLUSION OF LAW The criteria for establishing entitlement for compensation under 38 U.S.C. § 1151 for abdominal inflammation, groin inflammation, and/or nerve and muscle damage as a result of VA surgical treatment at the Denver VAMC in March 2006 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSIONS The appellant is a Veteran who had active service from January 1968 to April 1969, and active duty for training from May 1965 to September 1965. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 Department of Veterans Affairs (VA) rating decision. In July 2016 a hearing in the matter was held before the undersigned; a transcript is in the record. In September 2018 and April 2020 the matter was remanded for additional development. 1151 Eligibility The Veteran asserts that VA was negligent in performing a March 2006 partial nephrectomy. At the July 2016 Board hearing, he testified that he started having chronic pain in his entire right quadrant after the March 2006 surgery. He testified he was not aware that the surgery could result in his current symptoms. Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct, the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either 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 an event not reasonably foreseeable. See 38 U.S.C. § 1151. The record shows that in March 2006, the Veteran underwent a partial nephrectomy at the Denver VAMC. A March 2006 informed consent signed by the Veteran showed that the possible risks of the procedure included pain, infection, damage to the surrounding structures, damage to the bones, renal failure, and the need for dialysis. In July 2006, the Veteran reported occasional sharp pain that extended down to the hip and numbness below the incision. The diagnosis was post-incisional neuralgia and paresthesias following partial nephrectomy. In December 2006, he complained of abdominal and groin pain since the March 2006 surgery. In June 2014, E. H. PA-C, reported that the Veteran was seen for chronic right lower quadrant and right upper groin pain, which he stated started after his nephrectomy surgery. She opined that the pain represented damage to the ilioinguinal nerve as a result of the nephrectomy and associated intra-abdominal scarring from the procedure. In June 2015, a VA examiner noted that all surgeons are aware that any surgical incision may result in permanent and chronic postoperative pain complaints. The examiner reported that this was why all surgical consent forms listed pain as a risk of any [surgical] procedure. It was noted that the March 2006 consent form signed by the Veteran lists pain and damage to the surrounding structures as potential risks. The examiner indicated that the Veteran sustained permanent and irreversible nerve and muscle damage from the surgery. The examiner noted that the March 2006 surgery was conducted in a routine and accepted fashion without any adverse events or complications. The examiner opined that the Veteran’s post-operative chronic incisional pain complaints were due to the March 2006 surgery. The examiner opined that it was not at least as likely as not that the additional disability resulted from carelessness, negligence, lack or skill, or similar incident of fault on the part of the attending VA personnel. The examiner opined that it was not at least as likely as not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner opined that it was not at least as likely as not that 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. This opinion was not signed by a medical professional. In November 2019, the Veteran’s physician Dr. M.S. F. reported that the Veteran’s primary medical issue was intractable right abdominal and flank pain following a partial nephrectomy in 2006. Dr. F. diagnosed chronic pain syndrome and ilioinguinal neuropathy. Dr. F. reported that the Veteran’s pain was directly caused from the 2006 surgery. In January 2020, the Veteran’s physician Dr. D. D.v. H. completed a Medical Opinion Disability Benefits Questionnaire. Dr. H. reviewed the Veteran’s claims file. Dr. H. opined that the Veteran’s chronic right abdominal pain was at least as likely as not due to the March 2006 partial nephrectomy. On January 2020 VA examination, after reviewing the Veteran’s claims file, interviewing the Veteran, and conducting a physical examination, the examiner diagnosed residuals from partial nephrectomy and chronic pain syndrome. The examiner opined that the Veteran’s chronic pain syndrome was more likely than not a result of complications from the March 2006 partial nephrectomy. The examiner observed that a more thorough investigation than a record review and interview with the Veteran was required for an appropriate opinion. The examiner opined that the Veteran’s residuals from his March 2006 nephrectomy were not the result of carelessness, negligence, lack of proper skills, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care and medical or surgical treatment but more a result of non-intentional complications of the surgery. In November 2020, a VA urologist reviewed the Veteran’s claims file. The urologist opined that any additional disability (including as specifically noted neuropathy and pain) was less likely than not due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in furnishing hospital care and medical or surgical treatment. He stated that standard procedures and precautions were performed by VA. The provider explained that abdominal surgery, including (as here) partial nephrectomy, involves the cutting of neurovascular structures to perform the surgery, and that neuropathy and pain were listed on the consent form that the Veteran signed. At the outset, the Board finds that there has been substantial compliance with the Board’s April 2020 remand instructions. The consulting provider of the November 2020 advisory opinion is (as was requested) a physician with specific subject matter expertise (a urologist) and the opinion responded to the questions posed and included adequate rationale. The Board observes that the opinions of the January 2020 VA examiner and the November 2020 consulting VA urologist have not been placed in question by any medical professional. It is not in dispute that the Veteran has additional disability (pain and neuropathy) following the March 2006 surgical procedure at a VA facility in question (both VA examiners and his treating physician have so opined). However, that satisfies only the initial requirements necessary to substantiate a claim under 38 U.S.C. § 1151. What is further needed to substantiate the claim is competent evidence that the additional disability involves some element of fault on the part of VA/the surgical and medical professionals who provided the care or that the additional disability is due to an event not reasonably foreseeable. The Veteran testified that he feels there was negligence in his March 2006 partial nephrectomy by VA. However, whether the surgical and medical care he received was in accordance with generally accepted medical standards or involved an element of negligence and whether the additional disability is due to an event not reasonably foreseeable are medical questions that require medical expertise. See Jandreau v. Nicholson, 492 F.3d, 1372, 1377. The Veteran is a layperson, and therefore, his own opinion in the matter has no probative value. The opinion by the January 2020 VA examiner and the clarifying November 2020 opinion by a VA urologist (who has specific subject matter expertise specifically addressed the questions upon which this case turns, and included adequate rationale. In essence, they indicated that a surgery such as the Veteran’s partial nephrectomy involves cutting of neurovascular structures to allow for access to the surgical cite, and that neuropathy and pain are known complications, and are included in the consent form for such surgery, including, as specifically noted, the consent form the Veteran signed (and therefore would have been so advised and aware). The November 2020 consulting provider also indicated, in essence, that the surgical report and other pertinent clinical records were reviewed, and that nothing that deviated from, was not in accordance with, standard surgical procedure/generally accepted medical was found. The Board finds these opinions cumulatively, and in particular the November 2020) opinion fully responsive, with adequate rationale, to the questions posed seeking identification of the additional disability following the surgery, whether any was due to fault on the part of VA providers, and whether any was unforeseeable. Consequently, the opinions of the January 2020 VA examiner and the VA urologist are highly probative competent evidence in this matter. While the Veteran has submitted evidence supporting that he has additional disability following the March 2006 surgery, the opinions of E. H. and Drs. F. and H. addressed whether the Veteran’s residuals of chronic pain were as likely as not due to the March 2006 partial nephrectomy. Their opinions did not address whether the Veteran’s residuals from his March 2006 partial nephrectomy were due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of V.A. No medical provider has indicated in medical evidence of record, that the additional disability was due to negligence or fault on VA’s part or opined that the Veteran’s additional disability (neuropathy and pain) following the surgery or was a consequence of the surgery that was not reasonably foreseeable. In summary, the preponderance of the competent (and thus probative) evidence in this matter is against the Veteran’s claim. While the Veteran unfortunately has experienced residuals such as neuropathy and pain from his March 2006 partial nephrectomy, the record shows (as cited by the opinion-providers) that he was made aware of such potential risks, and that he so acknowledged by signing a consent form that specifically documented that pain and damage to the surrounding structures (and even worse complications) were possible risks of the procedure, and thus his symptoms were reasonably foreseeable (with explanation that included that the procedure involved cutting of anatomical “structures” that would cause the neuropathy and pain). Considering the foregoing, the Board concludes that the preponderance of the evidence is against these claims. The evidence of record fails to establish that the Veteran’s abdominal inflammation, groin inflammation, and nerve and muscle damage due to a March 2006 partial nephrectomy performed at the Denver VAMC involved carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or were due to an event not reasonably foreseeable. The criteria for establishing entitlement to compensation under 38 U.S.C. § 1151 have not been met. The appeals in the matters must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.