Citation Nr: 21010131 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-16 546 DATE: February 24, 2021 ORDER Entitlement to compensation benefits under 38 U.S.C. § 1151 for residuals of sinus surgery performed at the Minneapolis VA Medical Center (VAMC) on July 9, 2007, to include meningitis, confusion, memory loss, traumatic brain injury, migraines or headaches, transient ischemic attacks (TIA), and anxiety disorder, is denied. FINDING OF FACT The Veteran has additional disability of meningitis that was caused by VA sinus surgery on July 9, 2007; however, the additional disability of meningitis was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of sinus surgery performed at the Minneapolis VAMC on July 9, 2007, to include meningitis, confusion, memory loss, traumatic brain injury, migraines or headaches, TIA, and anxiety disorder, are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1976 to May 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2010 and May 2013, the Veteran presented testimony before a Veterans Law Judges as to the appeal herein. However, the Veterans Law Judges who conducted the July 2010 and May 2013 Board hearings are no longer employed at the Board. Thus, the Veteran was notified of the opportunity to request another Board hearing if he so desired, and in May 2016, he testified at another hearing before another Veterans Law Judge. The Veterans Law Judge who conducted the May 2016 hearing has since retired. In November 2020, the Board sent a letter to the Veteran offering a new hearing and no response has been received. Therefore, the Board will adjudicate the appeal based on the evidence available. Transcripts of July 2010, May 2013 and May 2016 hearings are associated with the claim file. In September 2020 the Board sent a letter to the Veteran in error offering another hearing. No request for another hearing was received and the Board will adjudicate the appeal based on the evidence available including the transcripts of all three previous hearings. In November 2010, January 2011, and October 2012, the Board remanded this claim for further development. Subsequently, in September 2014, the Board obtained a Veterans Health Administrative (VHA) medical opinion. In December 2015 the Board again remanded this claim for further development. Thereafter, in September 2016, the Board obtained another VHA medical opinion. In February 2019, the Board again remanded this claim for further development. It now returns for appellate review. 1. Entitlement to compensation benefits under 38 U.S.C. § 1151 for residuals of sinus surgery performed at the Minneapolis VAMC on July 9, 2007, to include meningitis, confusion, memory loss, traumatic brain injury, migraines or headaches, TIA, and anxiety disorder The Veteran seeks entitlement to compensation benefits under 38 U.S.C. § 1151 for residuals of sinus surgery performed at the Minneapolis VAMC on July 9, 2007, to include meningitis, confusion, memory loss, traumatic brain injury, migraines or headaches, TIA, and anxiety disorder. Specifically, in July 2010, during the first Board hearing, the Veteran’s then representative described the Veteran underwent endoscopic sinus surgery at the VAMC on July 9, 2007 and was discharged from the VAMC following the surgery on July 11, 2007 and that he returned back to the VAMC on July 13, 2007 with complaints of headaches, dizziness, and blurred vision, and then was again discharged from the VAMC. The Veteran’s representative then described the Veteran then later called the VAMC to report a 102.8 temperature, severe headaches and shakes, nausea, dizziness, that a nurse identified in the treatment record that the Veteran had meningitis. Thereafter, on July 18, 2007, he went back to the VAMC for a follow-up of the surgery, complained of all the same symptoms, and the VA again did not treat him for any meningitis and delayed antibiotic treatment until August 21, 2007, when meningitis was formally treated at that time. During the July 2010 Board hearing, the Veteran’s then representative argued that since the July 9, 2007 surgery until the present, the Veteran had all of the same symptomatology, that he believes were related to meningitis, as a result of the endoscopic surgery, due to the cerebrospinal fluid (CSF) leak, and that because meningitis was not treated for 44 days, this caused his current symptoms to be to their progressed state. During the July 2010 hearing the Veteran also reported his belief that the surgery itself caused the CSF leak, and then, due to it being untreated, caused his meningitis. During the April 2013 hearing the Veteran stated, in part, he was not contesting the surgery, and the risks thereof. He stated his claim was for residuals after the VA was told very clearly that he had meningitis. Specifically, that the surgeon and his primary care provider were told directly by a VA nurse that he had meningitis but did not take action. He further testified that in the recovery room a few hours later, a doctor came back with all the residents explained to him that the surgery went okay, except they encountered a CSF leak, which was a known risk, but that risk was considerably greater with first year resident, but because of the leak, he was admitted for a few days for bed rest and observation, but there was no mention of any antibiotics. He also explained, as nothing was being done in terms of his aftercare, just bed rest and Tylenol, and his wife at that time was a certified nursing assistant (CNA), and he went home. He testified that he was given one dose of IV antibiotics after he started asking to go home and to get a second opinion on the CSF leak and that no medical providers told him of the need for additional antibiotics, and that the reports were later changed to reflect such. The Veteran also testified, in essence, that when he subsequently attempted to seek treatment for symptoms such as fever, headache, and photophobia, his reports were ignored. Similarly, in May 2016, the Veteran testified that that his July 9, 2007 surgery was conducted by a resident and the nurse’s notes, that was watching the surgeon, stated the resident slipped and her instrument poked a hole through his skull causing the CSF leak was encountered and the doctor who was supposed to be supervising was not even in the operating room. He testified that subsequently after the surgery he went home, with some oral antibiotics, as he was supposed to have total bed rest and could not sleep at the VA facility. He testified that on July 14, 2007, he awoke with fever and other symptoms and called the VAMC and was told his fever of 102.8 was not that high and that he was only on day two of a seven-day dose of oral antibiotics and that they have to have time to work. He testified that it was documented that he had meningitis but that no further action was taken, and he was not diagnosed with meningitis until August 21, 2007. He testified that he incurred meningitis as a result of exposure during his sinus surgery, and that that meningitis resulted in additional cognitive symptoms of memory loss and confusion. Legal Criteria When a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner as if such disability or death was service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The law requires not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment, or that the proximate cause of the additional disability was an event not reasonably foreseeable. In determining 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. 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 cause. 38 C.F.R. § 3.361 (c) (1). 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 or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; 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 or medical or surgical treatment without the veteran’s informed consent. As compensation under 38 U.S.C. § 1151 is made “as if” the disability was service-connected, once service connection is granted, no additional benefit (monetary or otherwise) can be gained under 38 C.F.R. § 1151, nor does any controversy remain. See Hornick v. Shinseki, 24 Vet. App. 50, 53-57 (2010). VA is only required to consider a claim under the provisions of 38 U.S.C. § 1151, if the Veteran’s claim for service connection is denied under 38 U.S.C. § 1131. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Here, the Veteran has been granted service connection for mood disorder, to include depression and generalized anxiety disorder with somatic/panic symptoms, associated with degenerative disc disease and degenerative joint disease of the cervical spine, effective August 22, 2013. However, the Veteran’s claim, under the provision of 38 U.S.C. § 1151 with a reported disability of anxiety disorder, which also encompasses memory loss, was received on February 27, 2008, and thus, could potentially provide an earlier effective date in the event the benefit is granted. Thus, the 38 U.S.C. § 1151 claim in terms of additional disability manifested by anxiety disorder with memory loss is not moot. Facts On July 9, 2007, the Veteran underwent a left endoscopic medial maxillectomy due to a diagnosis of a left ethmoid inverting papilloma. During the procedure, a CSF leak was encountered in the superior posterior ethmoid area, which was repaired. A July 11, 2007 VA treatment record documented the Veteran requested to be discharged home and he was informed that the recommendation of his treating team was for him to stay as an inpatient as he had as an ongoing CSF leak. The July 11, 2007 VA treatment record documented the risks of leaving were discussed at length with the Veteran including risk of continued CSF leak, headache meningitis and death. The July 11, 2007 VA treatment record documented that it was explained to the Veteran that IV antibiotics were the only ones that penetrated the CSF, and he was given oral antibiotics because he had a pack in his nose. It was also documented that it was stressed to the Veteran that he should continue to be on bedrest while out of the hospital, and that not following this recommendation, would put him an increased risk of not healing the CSF leak. A July 13, 2007 VA treatment record documented that the Veteran had an endoscopic medial maxillectomy performed five days ago which was complicated by a CSF leak that was identified and repaired and noted that he had been on bedrest since the surgery. The July 13, 2007 VA treatment record noted the initial plan was to keep the Veteran in the hospital for five days of bedrest, but he left the hospital against medical advice on postoperative day number two, and he stated he had remained on bedrest at home and that he denied headache, fever, or chills. A July 14, 2007 telephone care nurse triage documented the Veteran reported since the surgery he had been running a low grade temp in the neighborhood of 99.5 degrees, and that this morning his temperature has increased to 101.6 degrees, and that he denied stiffness of his neck, and because of the seriousness of consequences of potential CNS infection he was advised to report to urgent care for evaluation and treatment this morning. The July 14, 2007 record also documented a section on patient education for meningitis and noted an identified problem of meningitis with an asterisk. However, the Veteran did not report for further treatment. Indeed, a July 16, 2007 addendum documented the Veteran reported his temperature was down, he still got sweats and chills but he had an appointment Wednesday with his VA primary care provider and would seek medical attention sooner if his condition worsened. A July 18, 2007 VA treatment record documented the Veteran reported a maximum temperature of 101.6 degrees on Saturday and 101.3 degrees on Sunday, but he had been afebrile for two to three days since, that he had not had any major headache but did feel a ring of pressure across the front from temple to temple and his neck stiff from a “pinched nerve” and that had not changed. The July 18, 2007 VA treatment record also documented he had returned to manufacturing work and was advised to limit activity more for several weeks. On July 17, 2007 the record reflects the Veteran was seen by a VA surgical resident, a VA staff physician and a VA staff surgeon. The next record VA record is dated August 1, 2007, and this VA treatment record documented the Veteran had a pain rating score 3 out of 10 in his sinuses and a temperature 97.9 degrees. The next August 15, 2007 VA treatment record documented the Veteran reported a severe headaches associated with mild nausea, no vomiting, and that he had been having temperatures up to 99.2 degrees. However, the August 15, 2007 VA treatment record noted the Veteran was five weeks status post left inverting papilloma with CSF leak repair but his headaches were difficult to relate to his surgery or any nasal related symptoms and that he appeared to be healing appropriately without any signs of CSF leak. The August 15, 2007 VA treatment record also noted the Veteran brought in a brochure from the traumatic brain clinic and it was discussed that he did not fit in this category. Thereafter, an August 21, 2007 VA treatment record documented the Veteran reported since the operation he had had severe headache, with constant baseline pain which was moderate, and that per the Veteran, with onset of headache he had typically developed chills, sweating, and temperature elevations to 99.5 degrees, that this past week, his temperature rose to 100.6 degrees on one occasion and noted likely bacterial meningitis with gram stain/cultures pending. The claims file also contains an informed consent form, signed by the Veteran on June 28, 2007, and witnessed, which documented the left endoscopic medial maxillectomy would be performed by a resident physician. The signed June 28, 2007 informed consent form explicitly listed that known risks included CSF leak and meningitis. Additional Disability Element A June 2008 VA examiner noted the Veteran underwent endoscopic sinus surgery, and incorrectly, but harmlessly, noted October 2007 as the date of the surgery rather than July 2007, but he accurately characterized the surgery as incomplete endoscopic surgery secondary to involvement with an inverted papilloma. The June 2008 VA examiner noted that the Veteran’s follow-up computerized tomography (CT) scan showed the left maxillary sinus and ostiomeatal unit to be opacified and his review of that CT scan from February 2007 showed pacification of the maxillary sinus and of the ethmoid up to the fovea ethmoidalis. The June 2008 examiner noted that at the time of the surgery an endoscopic approach was performed and a CSF leak was determined, that there was area of papilloma in the area of the eventual leak that was seen and on review of the preoperative CT scan this was noted to be a thin area of the ethmoidalis. The June 2008 VA examiner noted that a repair was intraoperatively performed using an acceptable technique, which was eventually successful, although a postoperative meningitis was found, and was the cause of a subsequent admission. The June 2008 VA examiner opined that given the extensive nature of surgery for inverting papilloma, all the papilloma must be cleared, and that a thorough dissection needed to be performed, and additionally, that the area involved the fovea ethmoidalis an area where surgery does carry a risk for a CSF leak. The June 2008 VA examiner explained that a CSF leak was a potential complication for any endoscopic in sinus surgery much less a surgery which requires much more extensive dissection involving inverting papilloma that there was no evidence of carelessness, negligence, lack of proper skill, and there was no error in judgment or similar instance of fault of the VA in furnishing the hospital care and surgical treatment. However, a CSF leak is not in and of itself a form of additional disability and these examiners did not address the Veteran’s claimed additional disability in terms of meningitis, confusion, memory loss, traumatic brain injury, migraines or headaches, TIA, or anxiety disorder. Further, in an August 2012 statement, the Veteran reported his 1151 claim was not for the surgery or the CSF leak, it was for VA’s failure to timely diagnose his meningitis, specifically, that he repeatedly complained of three major symptoms and but doctors did nothing and caused him to suffer for additional days from meningitis. In terms of migraines or headaches, the Veteran submitted August 2007 and September 2007 private medical records from Daniel Yoon, M. D. In August 2007 private medical record, Dr. Yoon stated, in part, that it was difficult to tell whether or not the Veteran’s headaches were due to unrelated migraines versus the potential, although unlikely, that the CSF and subsequent repair could be causing the headaches as the distribution of his headaches and his description of them did not seem consistent with this; however, he needed more information before he could make any kind of further analysis of the situation. In September 2007, Dr. Yoon stated, in part, that the Veteran continued to have problems with rhinosinusitis which was very likely causing his continued symptoms of headache. Another private medical provider, Nathaniel Young, D. O., affiliated with the Mayo Clinic, in October 2007 stated, in part, that there was currently no clinical evidence of meningitis or a low pressure headache syndrome and he thought that the Veteran had residual migrainous headaches at times associated with visual and possibly somatic aura and that he did not think the Veteran had an acute stroke or TIA, but he could not exclude that some of his spells were TIA, but that seems unlikely. In a May 2016 medical letter, Dr. Young, noted that at the time of the October 1, 2007 record, he did not have all of the Veteran’s outside medical records, which documented evidence of meningitis, which he did note in the history at that time. In a July 2010 statement, the Veteran’s mother reported, in part, she knew the Veteran had never suffered from chronic headaches in the past until this surgery on July 9, 2007. A January 2011 VA examiner found the Veteran developed headaches shortly after his surgery July 9, 2007, however the etiology of these headaches was still unknown. A January 2015 VHA examiner found the Veteran may indeed have a migraine headache or other chronic headache or chronic pain disorder; however there was a low probability that the Veteran’s diagnosed chronic migraine headaches were due to any VA treatment, to include the July 9, 2007 sinus surgery and subsequent care. In terms of confusion, traumatic brain injury, and TIA, a September 4, 2007 private medical record endorsed a diagnosis of TIA. Another September 2007 private medical record documented, in part, that on the day of admission, September 4, 2007, the Veteran had an episode of word finding difficulty which lasted for a few minutes and subsequently had a 30-minute episode of dysarthria, right hand numbness and right facial weakness later that day which resolved. This record also documented the Veteran subsequently had magnetic resonance imaging (MRI) and magnetic resonance angiography of the brain as well as a cardiac echo which were unremarkable except for some small vessel disease and leptomeningeal enhancement felt probably due to his CSF leak or increased white blood cells count, but the Veteran’s symptoms had completely resolved by that point and neurology recommended no further workup or followup. As noted above, in October 2007 Dr. Young stated, in part, he did not think the Veteran had an acute stroke or TIA, but he could not exclude that some of his spells were TIA, but that seems unlikely. In a May 2016 medical letter, Dr. Young, noted that at the time of the October 1, 2007 record, he did not have all of the Veteran’s outside medical records, but he did not feel comfortable revising the clinical note from 2007, and he believed it was still true that a TIA was an explanation for the Veteran’s facial droop and remained a possible explanation for that symptom as well as migraine aura. Dr. Young stated he believed the intent of his note at that time was to indicate that anxiety with globus sensation was a reasonable explanation for whispering speech and loss of speech but would not be a likely primary explanation for facial droop. The January 2011 VA examiner noted the Veteran was, in part, claiming addition disability of confusion but the medical evidence of record failed to show this disability has been clinically diagnosed; however, it did appear there were episodes of confusion during his anxiety/panic attacks and these were short-lived and not persistent. As to traumatic brain injury, the January 2011 VA examiner found the medical evidence of record failed to show that this disability had been clinically diagnosed. As to TIA, the January 2011 VA examiner found the medical evidence of record failed to show this disability has been clinically diagnosed and cited to the evaluation done October 1, 2007 by a neurologist at Mayo Clinic, referenced above, that stated it was unlikely that a TIA or stroke occurred. In terms of anxiety disorder with memory loss, as to the claimed disability of anxiety disorder, the January 2011 VA examiner found evidence of an anxiety disorder prior to the surgery but no use of medication, and there were several mentions by providers that the constellation of symptoms experienced after the surgery could have been the result of anxiety and this additional stresses placed on the Veteran with his postoperative complications could certainly aggravate this pre-existing condition. With respect to the claimed disability of memory loss, the January 2011 VA examiner found the medical evidence of record failed to show this disability has been clinically diagnosed as psychological evaluations did not show any deficits in memory or cognitive function. The January 2015 VHA examiner found the Veteran may indeed have a panic and anxiety disorder; however, there was a low probability that any acquired psychiatric disorder was due to any VA treatment, to include the July 9, 2007 sinus surgery and subsequent care. In terms of meningitis, as noted above, a March 2010 VA examiner noted, in part, the Veteran apparently had acute meningitis and was treated with Vancomycin and Zosyn with complete resolution of symptoms. A January 2011 VA examiner found it was difficult to assess whether the meningitis was a result of signing out against medical advice; however, he explained that IV antibiotics penetrate the meninges better than any oral medication that the Veteran was able to take at home and if the Veteran had stayed in the hospital he would have been evaluated on a daily basis, his fever curve would have been followed, and the nature and timing of his headaches would have been better known and his activity level would have also been monitored. In October 2007 Dr. Young stated, in part, that there was currently no clinical evidence of meningitis. In a May 2016 medical letter, Dr. Young, noted that at the time of the October 1, 2007 record, he did not have all of the Veteran’s outside medical records, which documented evidence of meningitis, which he did note in the history at that time. He further stated that meningitis could certainly increase the CSF opening pressure, which was noted as well, but he did not feel comfortable revising the clinical note from 2007. The January 2015 VHA examiner found that the additional disability the Veteran currently experienced as a result of the July 9, 2007 surgery the CSF leak and subsequent treatment from the date of the surgery until August 21, 2007 admission was that the Veteran likely developed post-operative pain potentially including a transient chemical meningitis-with post-operative headache as a result of the surgery, CSF leak and patch to repair the leak. In a letter received in May 2016, Richard Hill, M.D., although unsigned and undated, found the Veteran had additional disability of meningitis and provided a list of after-effects of meningitis. Thus, the Board finds that the Veteran has additional disability in the form of loss of meningitis that due to the July 9, 2007 VA sinus surgery. Thus, the additional disability element of the claim has been met. See 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (b)-(d). Fault and Foreseeable Elements A March 2010 VA examiner reported, in part, the Veteran apparently had acute meningitis and was treated with Vancomycin and Zosyn with complete resolution of symptoms and there was no evidence that the Veteran at the time had CSF leakage. The March 2010 VA examiner explained the VA treatment records pertaining to the Veteran’s surgery and cerebrospinal fluid rhinorrhea from the resection of the tumor which was inverting papilloma were thoroughly reviewed, and he concurred with the June 2008 VA examiner’s opinion that the CSF leakage was acceptable complication of a complex surgery for inverting papilloma and there was no evidence of carelessness, negligence, lack of proper skill, or any error in judgment and that subsequent hospital care provided to the Veteran was also compliant with standard of care. The January 2011 VA examiner noted the consent for the surgery was signed June 28, 2007 by the Veteran and included potential complications of CSF leak and meningitis and that the Veteran signed out against medical advice on postoperative day two, requiring a change from IV antibiotics to oral antibiotics, and he was also asked that he lay flat on his back for five days and keep his activity to a minimum. Further, the January 2011 VA examiner found when the Veteran called in on July 14, 2007 and spoke with nurse triage, he was asked to go to the urgent care that day, but he did not seek medical treatment until July 18, 2007. The January 2011 VA examiner found it was difficult to assess whether the meningitis was a result of signing out against medical office; however the IV antibiotics penetrate the meninges better than any oral medication that the Veteran was able to take at home and if Veteran had stayed in the hospital he would have been evaluated on a daily basis, his fever curve would have been followed, and the nature and timing of his headaches would have been better known and his activity level would have also been monitored. The January 2011 VA examiner also opined there was no medical evidence of fault on the part of the Minneapolis VAMC in regard to negligence, lack of scale, error in judgment, or similar instance of fault on the part of the providers furnishing the hospital care, medical, or surgical treatment. Thereafter, August 2011 VA examiner opined there was no medical evidence in the record that supported or even suggested that any VAMC provided lacked high standards of care, good judgement, and appropriate degree of care with regard to the Veteran. Specifically, the August 2011 VA examiner explained that CSF leaks were a known complication of any sinus surgery and there was a greater risk of this occurring in the case of an inverted papilloma where the inverted papilloma may be through the skull base. The August 2011 VA examiner found the physician’s response to this intraoperative complication was exactly correct and every effort was made to provide for his care in spite of him leaving against medical advice after the surgery. Again the August 2011 VA examiner stated this was a known complication of sinus surgery, and by itself, did not suggest a breach of the standard of care and it was a clear the risk and complications of sinus surgery were explained to him by the VA prior the surgery, consent was signed June 28, 2007, and the risk of CSF leak was meningitis were explained at that time. Furthermore, the August 2011 VA examiner stated there was no clear evidence in the record that the Veteran ever did really develop meningitis, and to his knowledge, the only complication of meningitis was either death or hearing loss and audiometrically, his hearing was good. Thus, the August 2011 VA examiner found, in the unlikely event that he did have meningitis, he obviously did not have either of those two complications, and meningitis would not account for his current symptoms of anxiety disorder, memory loss and migraine headache. In conclusion, the August 2011 VA examiner stated there was no evidence in the medical record or on evaluation of the Veteran, by history or physical examination, that any of his six current complaints could be reasonable attributed to either the July 9, 2007 surgery or the care at the VA system before and after that date. The August 2011 VA examiner found the Veteran’s decision to leave the hospital against medical advice had a profound negative impact on the VA systems’ ability to treat him and he basically signed out against medical advice with a known active CSF leak, when even thought it was explained to him that there was a risk meningitis, he continued to leave against advice and there was really no ability at that point for the VA to manage this potentially serious problem. As discussed above, the January 2015 VHA examiner found that the additional disability the Veteran currently experienced as a result of the July 9, 2007 surgery the CSF leak and subsequent treatment from the date of the surgery until August 21, 2007 admission was that the Veteran likely developed post-operative pain potentially including a transient chemical meningitis with post-operative headache as a result of the surgery, CSF leak, and patch to repair the leak. The January 2015 VHA examiner found the transient chemical meningitis may also result postoperatively due to the presence of blood and blood products in the CSF (normally similar to a saline solution), but there no evidence in the medical records to support a diagnosis of a bacterial or other infectious meningitis. The January 2015 VHA examiner noted the Veteran was treated with prophylactic IV antibiotics after the surgical procedure but this was discontinued due to the Veteran leaving the hospital against medical advice, and thus, at that time, a course of prophylactic oral antibiotics was prescribed; however antibiotics are ineffective for chemical meningitis and the best postoperative treatment course was rest, hydration, pain medications as needed, and avoidance of physical exertion, as advised. The January 2015 VHA examiner found there was no evidence to suggest that the CSF leak persisted after the procedure. The January 2015 VHA examiner explained a true bacterial meningitis can rapidly progress to death within 24 to 28 hours - after symptoms of worsening headache neck stiffness high fever and gradual loss of consciousness from lethargy to coma and death. The January 2015 VHA examiner stated that despite claims of fever, there was no fever documented on a physical examination and there was no evidence in the chart to support a diagnosis of bacterial or infectious meningitis, such as positive blood culture or CSF culture. The January 2015 VHA examiner also found that the Veteran may indeed have additional disabilities due to the July 9 2007 surgery the CSF leak that occurred during surgery and the subsequent care he received from VA providers following the surgery and the subsequent care he received from VA providers following the surgery until his August 21, 2007 in patient admission; however, there was a low probability that the additional disabilities were due to any VA treatment to include the July 9, 2007 sinus surgery and subsequent care. The January 2015 VHA examiner found there was no evidence to suggest that any current disability was due to carelessness negligence lack of proper skill error in judgment or similar instance of fault on the part of the VA facility care or medical treatment or to an event not reasonably foreseeable. Conversely, in a January 2010, Steven S. Lebrow, M.D., opined that from the notes he received, that obviously if the Veteran was giving him the correct history, he had a drill penetrate his sinus wall and had an instant CSF leak but whether this was an accepted risk of sinus surgery and commonly occurs or would be considered outside the realm of standard of care was something to be asked of an ear, nose and throat (ENT) physician not a neurologist. However, Dr. Lebrow did opine, that assuming again the hospital records document he had a CSF leak and was discharged on antibiotics, and if he indeed then called stating that he was spiking temperatures with the history of CSF leak, that would be considered an emergency and he would certainly have been reevaluated. Dr. Lebow noted the Veteran reported follow-up visits over the course of 44 days, complaining of headaches and shaking, chills fevers with persistent CSF rhinorrhea for at least the first eight to nine days postoperatively, and despite continued complaints he got no response and no reevaluation until August 21, 2007 when he went to the emergency room. Dr. Lebow stated that if this was documented to be true certainly with those complaints and that history, that would be outside the standard of care. However, Dr. Lebow’s opinion lacks probative value as he did not explicitly identify any additional disability the Veteran may have experienced as a result of the surgery and it is unclear as to what evidence he actually reviewed rather than relying on the Veteran’s own report. Additionally, in a letter received in May 2016, Richard Hill, M.D., although unsigned and undated, stated, in part, that although CSF leaks do occur even with experienced surgeons, comments from the staff suggest the incidence among the inexperienced and loosely supervised staff was far greater than the 2/1,000 given in the literature. Dr. Hill stated at unlike open chest or abdominal surgery, endoscopic surgery was done with a small instrument and only one person can control it and it was not surprising that in such a demanding and dangerous situation that the novice surgeon inadvertently allowed the cutting instrument to slip and nor was it surprising that the repair was not successful either and CSF leakage after the “repair” continued. Dr. Hill stated that just as what happened when a novice operator allowed an instrument to slip in a particularly challenging situation was entirely predicable, so was the outcome of that mishap. Dr. Hill also stated a botched surgery has a serious effect on the novice surgeon, and the surgeon wants to avoid the patient and tries to get rid of him and there was an “us” vs “them” among the staff, although a few better nurses will side with the patient, which clearly happened here, and the Veteran, sensing the abandonment panics and tries to get help elsewhere, and this also happened here, and outside specialists sensing a messy medico-legal mess decline to get involved and send the patient back to the original surgeon. Dr. Hill stated when the Veteran came back and presented with obvious signs of meningitis, the treatment team tried to ignore it and fortunately those not involved in the original mishap could approach this objectively and clearly saw the situation for what it was and he was found to have meningitis on August 21, 2007 and admitted and in an uncomplicated CSF leak the risk of meningitis was about 20 percent, but this was hardly uncomplicated as the MRI showed possible adherence of the brain to the area of surgery and there was an ongoing infection shown to be right in the area of the leak, the ethmoid sinus. Dr Hill wondered why would anyone suppose in that situation that the infection would not spread through an open communication with the meningeal membranes. Dr. Hill stated it clearly did and he found it amazing statement from one of the VA’s reviewers, specifically the January 2015 VHA opinion finding of that there was no evidence of bacterial meningitis which cited lack of a positive CSF culture as evidence. Dr. Hill found there was ideal setting for meningitis to occur, all of the symptoms, and confirmatory CSF findings of very substantial pleocytosis, elevated protein and low glucose. He also stated that while a reaction to the allograph used to patch the leak was given as an explanation for the CSF findings and that might account for the protein, but the neutrophil count was rather high for that and the low glucose was unaccounted for. Dr. Hill found the Veteran had additional disability of meningitis and provided a list of after-effects of meningitis. Dr. Hill stated it would be impossible to prove, that any one symptom was the result of the meningitis, but that someone with significant prolonged partially treated meningitis has some neurologic deficits was practically certain and he regarded the notion that the Veteran did. Regarding whether this was the fault of VA, Dr. Hill cited a list four factors, specifically a novice surgeon taking on difficult case, the nurse’s note contains acknowledgment that “instrument slipped” which surely sounded like a lack of proper skill as instruments do not slip when controlled by experienced surgeon with requisite skill, that even the repair of the botched procedure was itself botched with ongoing CSF leak and total failure to even consider the diagnosis of post-operative meningitis despite high probability plus symptoms. Dr. Hill stated the Veteran was led to believe that an experienced surgeon would be performing his operation. Dr. Hill stated it was one thing for things to go wrong with an experienced surgeon, it is quite another when the “instrument slipped” in the hands of a novice and it was also critical that his surgery was hardly routine. Dr. Hill noted that there was no outside opinion from ENT and wonder if should such a case have been assigned to a novice and even if the staff surgeon was in the room, only one person could control the instrument and as noted in records, the staff surgeon was not in the room when CSF leak was encountered and had to be called back. Dr. Hill stated the Veteran clearly did not have the close observation required by current standards and this made his failure to get IV antibiotics due to his leaving against medical advice irrelevant. Dr. Hill further stated the Veteran clearly had meningitis and it would not be hard to show he had suggestions of it earlier and the low CSF glucose could not be explained by anything other than meningitis. However, Dr. Hill’s opinion relies on findings inconsistent the other evidence of record. First, Dr. Hill’s opinion is based, on part, upon a July 14, 2007 VA telephone care nurse triage record which documented that during surgery, the surgeon’s instrument slipped causing a CSF leak. However, this appears to be the nurse’s documentation of the Veteran’s own report rather than an independent finding as this record is not dated contemporaneous to the surgery (it is dated a week after the surgery), and there is no indication the nurse reviewed the Veteran’s surgical records in any detail or made an independent finding. Further, this record was based on a telephone call with the Veteran rather than an in person consultation. Second, Dr. Hill ignored, as addressed by the above VA examiners and VHA examiner, the rest of the July 14, 2007 telephone care nurse triage which specifically documented that because of the seriousness of consequences of potential CNS infection advised to report to urgent care for evaluation and treatment, but that the Veteran did not do so. Indeed, a July 16, 2007 VA treatment record documented the Veteran was again contacted that he reported his temperature was down, he still got sweats and chills but he had an appointment Wednesday here with his primary care provider and would seek medical attention sooner if his condition worsened. Thereafter, a July 18, 2007 VA treatment record documented the Veteran reported a maximum temperature of 101.6 degrees on Saturday and 101.3 degrees on Sunday, but he had been afebrile for two to three days since, that he had not had any major headache but did feel a ring of pressure across the front from temple to temple and his neck stiff from a “pinched nerve” and that had not changed. This record also documented the Veteran had returned to manufacturing work and was advised to limit activity more for several weeks. Third, Dr. Hill’s finding that fortunately those not involved in the original mishap could approach this objectively and clearly saw the situation for what it was, and the Veteran was found to have meningitis on August 21, 2007, is not supported by review the August 21, 2007 VA treatment record. The August 21, 2007 VA treatment record itself, which Dr. Hill essentially characterized as authored by an objective medical provider, while it documented the Veteran reported that since the operation he had had severe headache, it also documented he reported temperature elevations to 99.5 degrees, and that this past week, his temperature rose to 100.6 degrees on one occasion. However, this documentation is not consistent with the Veteran’s own numerous reports, including as in a July 2010 statement, that his temperature following the sinus surgery was 102.6 degrees from July 13, 2007 to July 17, 2007. Fourth, Dr. Hill’s finding that comments from the staff suggest the incidence among the inexperienced and loosely supervised staff was far greater than the 2/1,000 given in the literature is unsupported by any evidence of record. Additionally, the record also shows that a resident, who is a physician and not a student, performed the surgery with an attending surgeon also present. Thus, negligence based on failure to exercise the proper degree of care is not shown. Fifth, Dr. Hill’s opinion is inconsistent with the informed consent form, signed by the Veteran on June 28, 2007, noted the surgery would be performed by a resident physician. In this regard, the Veteran has also asserted, including statements dated in August 2007 and September 2012, as well as in April 2013 and May 2016 testimony, that he was told that the staff surgeon would do the surgery and his consent was for her to do the surgery. In July 2010 testimony, he also reported when he signed the consent form the risks were not discussed. In May 2016 testimony the Veteran reported that he never got a copy of the consent form, so it could be altered. However, again, review of the informed consent form, signed by the Veteran on June 28, 2007, specifically listed practitioners performing the surgery were a resident surgeon and two resident physicians which would be supervised by a staff surgeon. Moreover, the signed June 28, 2007 informed consent form explicitly listed that known risks included CSF leak and meningitis. The Veteran’s signature on the June 28, 2007 informed consent form is also shown by a witness who also signed the form. The Board is aware of the that the presumption of regularity may not be used to conclude that a physician has fully informed a veteran about a particular consequence of a particular medical procedure where the only evidence supporting the presumption is a generic consent form that was filled out properly. McNair v. Shinseki, 25 Vet. App. 98, 104-107 (2011). Nonetheless, a physician’s failure to advise a veteran of a foreseeable risk may be considered a minor, immaterial deviation if it is determined that a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. Id. Here, the Board finds that there was no absence of informed consent or the occurrence of an event not reasonably foreseeable. As discussed above, the January 2015 VHA examiner found there was no evidence to suggest that any current disability was due to an event not reasonably foreseeable. Further, the facts of the instant case show that the informed consent form discussed that the known risks and side effects, specifically, the known risks explicitly included CSF leak and meningitis, which indicated that the Veteran understood the nature of the proposed procedure, and the risks involved. Further, the Board, as finder of fact, places greater weight on this contemporaneous evidence, than it does on statements made by the Veteran that he was not told of any possible complications. Further, as discussed in more detail below, the Veteran has found to have reported less that credible recollections of his events surround his July 9, 2007 sinus surgery and subsequent treatment. Finally, in an April 2018 addendum opinion, the same VHA examiner as who provided the January 2015 opinion, explained that chemical versus bacterial meningitis may have similar signs and symptoms, and both may be associated with pleocytosis in CSF and the only difference was the absence of bacteria in chemical meningitis (negative cultures). The VHA examiner explained a postoperative chemical meningitis was speculated to potentially explain post-operative complaints of headache, fever, neck stiffness, etc., but a true bacterial meningitis would likely have been far more serious –quickly leading to coma and death in the absence of antibiotic treatment (or often even with antibiotics). Thus, the VHA examiner explained the symptoms of chronic meningitis reported may have been due to a possible chemical meningitis as a result of blood transiently contaminating CSF post-operatively (breach of meninges led to a CSF leak followed by a patch). In the April 2018 addendum opinion the VHA examiner further explained that potential complications of sinus surgery included a breach of the meninges leading to CSF leak, infection, hemorrhage, and death and many of the chronic symptoms reported by the Veteran were atypical complications of sinus surgery, and the wide variety of chronic symptoms (such as TIAs) suggest that they were unlikely (low probability) to be as a result of sinus surgery or subsequent care. In the April 2018 addendum opinion, the VHA examiner also explained that chemical meningitis may occur after any surgery that breaches the meninges –leading to blood products contaminating CSF (pleocytosisor blood cells in CSF and this may result in headache and other symptoms similar to bacterial meningitis, albeit typically milder. The VHA examiner explained chemical meningitis usually resolved spontaneously (days) as spinal fluid was normally replaced and symptoms abate, and bacterial meningitis was usually much more severe, and may result in coma and death in the absence of antibiotic treatment (or even with antibiotic treatment). Due to the CSF leak post-operatively, and patch, the VHA examiner explained, the symptoms of headache and perhaps fever may be explained by the sinus surgery and complications; however, other symptoms (TIAs) were unlikely to be due to sinus surgery and subsequent care. In the April 2018 addendum opinion the VHA examiner also found there was no evidence in the medical record to suggest that claimed disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care, or to an event not reasonably foreseeable. In fact, the VHA examiner found the routine post-operative care may have been complicated by noncompliance of the Veteran (for example, post-operative discharge against medical advice). In the April 2018 addendum opinion VHA examiner noted the Veteran was certainly competent to report observable symptomatology and that due to the sinus surgery, CSF leak, subsequent patch, and possible chemical meningitis, it was very reasonable to expect the Veteran to have symptoms of fever, headache, and neck stiffness following the July 9, 2007 surgery. However, the VHA examiner explained as CSF was replaced and CSF pressure was normalized, these symptoms typically abated after a few days and there was no reasonable explanation in the medical record to link the multiple chronic symptoms reported in the months and years following the surgery July 9, 2007. In the April 2018 addendum opinion, the VHA examiner also explained he could not comment on how Drs. Lebow and Hill arrived at their opinions. However, he explained that post-operative bacterial meningitis was certainly a possibility, and antibiotic treatment may have been delayed by non-compliance of the Veteran (for example, post-operative discharge against medical advice). The VHA examiner also found the Veteran may certainly have symptoms of confusion, memory loss, traumatic brain injury, migraines/headaches, TIA, anxiety, and depression; however, these symptoms were unlikely due to the sinus surgery, its complications, or subsequent care. The VHA examiner explained the Veteran was aware of risks of the surgical procedure and there was no evidence to suggest that any claimed disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment or to an event not reasonably foreseeable. As discussed above, the Dr. Lebow’s opinion lacks probative value as he did not explicitly identify any additional disability the Veteran may have experienced as a result of the surgery and it is unclear as to what evidence he actually reviewed and Dr. Hill’s opinion lacks probative value as it relies on findings inconsistent and unsupported by the objective evidence of record. Moreover, the Board finds the March 2010, January 2011 and August 2011 VA opinions, and the January 2015 and April 2018 VHA opinions, taken in combination, to be highly probative. Each opinion was predicated on a full overview of the entire relevant record and was presented by an examiner who were specifically tasked to present opinions after review of the evidence. Each examiner explained the reasons for their conclusions based on review of the record. Thus, these opinions are entitled to substantial probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board accepts the VA examiners’ and VHA’s examiner’s opinions as probative evidence that the Veteran’s additional disability of meningitis is not indicative of lack of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA. Rather, meningitis was a known, common and unavoidable risk to July 9, 2007 sinus surgery and that the Veteran was fully informed of this risk as evidenced by the June 28, 2007 signed consent form. Accordingly, his meningitis a reasonably unforeseeable consequence of the July 9, 2007 sinus surgery complicated as he left hospital treatment against medical advice. In short, the probative evidence of record does not show that the Veterans additional disability of meningitis is at least as likely as not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or the result of an event not reasonably foreseeable. Other Considerations In a May 2011 and July 2012 statements, as well as in other statements, the Veteran argued that the VA obtained and used opinions from close personal friends and colleagues of the staff surgeon and these opinions were not unbiased. In a June 2011 statement, the Veteran argued a particular examiner was very familiar with his case history and was a close personal friend of the doctor that refused him care and almost caused his death. In an August 2012 statement, the Veteran generally argued the August 2011 VA examiner’s opinion was not impartial as he was an associate of the surgeon who performed the surgery at issue and contained false statements and he appeared coached. In a May 2015 statement, the Veteran stated it appeared the Board coerced the VHA examiner because he was a former VA or former government employee and the Board paid him and he was motivated by greed. However, the question of whether an examiner is competent and whether he has rendered an adequate opinion are two separate inquiries. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional’s qualifications in every case as a precondition for the Board’s reliance upon that person’s opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, the Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. Id. at 1381. Rather than challenging the competency of the VA examiners or VHA examiner in this case, the Veteran’s objection is based on these experts perceived lack of impartiality. However, there is no evidence to support the Veteran’s contentions nor is the Board able to discern any material irregularities in these opinions, thus these opinions are adequate. Additionally, the Veteran submitted the multiple articles, including articles regarding the definition of meningitis and traumatic brain injury in January 2010, and again in July 2010 and July 2012. He also submitted an article regarding avoiding hospital care in July in August 2011 and additional articles, including regarding TIA and meningitis, in July 2012, April 2013 and May 2015. However, these articles contained medical information that was general in nature and do not address the specifics of the Veteran’s case. In April 2013 testimony, the Veteran also asserted that everybody had at the VA had infections, that one patient on one side had an infected hip replacement surgery, another patient had his bladder removed and had some kind of infection and another patient behind him was so infected, he was mostly in a coma. In April 2013 testimony, the Veteran also reported he met an employee that went through the same exact surgery as himself and was still suffering residuals. However, while the patients the Veteran observed may have appeared to be similarly placed, there is not indication that the Veteran had any specific knowledge regarding the facts and circumstance of any other patients’ cases. In an August 2007 statement, the Veteran essentially described following his surgery, specifically on the second day July 10, 2007, the third day July 11, 2007, and the fourth day July 12, 2007, that alarms went off day and night, and on the fifth day July 13, 2007, alarms were still going off, that he had had no sleep, and had a fever, a headache, and felt weak, and that if he was going to die he wanted to die at home with his family. He also specifically reported, in part, he asked to see the staff surgeon on July 12, 2007 and July 13, 2007 but that that she did not show. However, contrary to the Veteran’s report, the record reflects the Veteran, on July 11, 2007, left VA hospitalization, against medical advice on postoperative day number two. Thus, the dates he referenced, specifically on July 12, 2007 and July 13, 2007, he was not hospitalized, and thus also could not have asked to have been seen by the staff surgeon. Thus, the Veteran’s recollection is not consistent with the objective evidence of record. Further, in April 2013 testimony, the Veteran noted VA said he left on July 11, 2007 but that he did not believe he left until the July 12, 2007, because his spouse made he sure he stayed one more night. In May 2016 testimony, the Veteran reported requested to be discharged on July 11, 2007 but that his spouse talked him into staying another night and he left on July 12, 2007. However, as discussed above, in an August 2007 statement, specifically he reported he left VA hospitalization on the fifth day, July 13, 2007. These inconsistent statements reflect the Veteran’s recollection is not clear. Also, in an August 2012 statement, the Veteran also reported on July 11, 2007 he was not refusing care, but was afraid for his life, as had a confirmed CSF leak and the VA doctors were doing nothing to slow it down or stop it, and he thought if he stayed there all the fluid would leak out, that he would die, and that he trying to get the best possible care and told the nurse he needed to get a second opinion. He also stated did not go home unattended, that he continued bed rest and was observed 16 hours per day by a CNA. However, there is no indication that the Veteran got a second opinion for CSF leak in July 2007, which would have presumably been of paramount importance if he believed his life was at stake. Further, a July 18, 2007 VA treatment record also documented the Veteran had returned to manufacturing work, which is not supportive of his contention that he continued bedrest (which the Veteran indicated was false, including as in a June 2009 statement). The Board recognizes in an August 2007 statement, the Veteran also reported that after he returned home, on July 13, 2007, he placed an emergency call to his prior ENT physician, Dr. Rolf N. Skogerboe and that this doctor refused to talk to him directly but dictated a message for his assistant to tell him the surgeons at the VA Hospital were butchers and they cut you up and damaged you, he and every other ENT in Minnesota would refuse to treat him and he had to go back to the VA for his medical care. In an October 2010 statement, the Veteran stated Dr. Skogerboe refused to see him because they were VA butchers at the VA and he could not fix that and that he had no choice resumed his care at VAMC. In a September 2010 statement, the Veteran reported he unable to get a second opinion and resumed his care at the VAMC. However, the Board is unclear as to why, if Dr. Skogerboe thought the Veteran had been butchered, or if the Veteran himself thought he had a life threatening emergency, why would Dr. Skogerboe would not have advised him to seek emergency treatment at any facility, or why would the Veteran not have sought emergency treatment at any facility if he believed was deathly ill. In April 2013 testimony, the Veteran also indicated that all the physicians he had talked to said the most likelihood of where he got the meningitis was in the operating room. However, layperson’s account of what a doctor, including Dr. Skogerboe, purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). Additionally, the Veteran, as in an August 2007 statement, generally asserted that his VA medical records medical records were full of false statement and appeared to have been altered. Specifically, in the August 2007 statement, the Veteran reported he was seen by the staff surgeon on August 1, 2007 and told her he had severe headaches a temperature of 102.6 degrees with vision impairments and severe fatigue and she did nothing sent him home. However, review the August 1, 2007 VA treatment record documented the Veteran had pain rating score 3 out of 10 in his sinuses and a temperature 97.9 degrees. Additionally, in a July 2010 statement, the Veteran’s spouse reported she was a CNA and that on or about July 14, 2007, she was present when the Veteran called the VAMC emergency number and reported he had a severe headache and was shaking with a 102.8 temperature and the triage nurse responded that it is not a high fever unless it reached 103 and that it was not an emergency room concern until it hit 105 degrees and that his temperature from July 13, 2007 to July 18, 2007 averaged 102.6 degrees and that he stated that he experienced severe headaches that lasted about 13 hours daily. The Veteran reported these same contentions in other statements, including dated in July 2010 and October 2010, as well as in May 2016 testimony. Also, in an August 2012 statement, the Veteran stated that when he woke up on July 14, 2007, he had chills sweating and intense head pains and was told by a VA nurse to continue antibiotics and remain on bedrest and that his reported 102.8 temperature was not high and that it appears the nurse did some research and found out she gave him the wrong advice and logged back in and edited her report. Additionally, in May 2016 testimony, the Veteran reported that unbeknownst to him, this triage nurse filed a report and sent an official note to both his doctor and surgeon and told them he was dying from meningitis. However, contrary to the Veteran’s and his spouse’s assertions, review of the July 14, 2007, does in fact, reflects the Veteran was advised to report to urgent care for evaluation and treatment that morning. The July 14, 2007 record also documented a section on patient education for meningitis and noted an identified problem of meningitis with an asterisk. The next July 16, 2007 addendum documented the Veteran reported his temperature was down, he still got sweats and chills but he had an appointment Wednesday with his VA primary care provider and would seek medical attention sooner if his condition worsened. Similarly, in an August 2012 statement, the Veteran also stated that when he was seen on July 18, 2007, he provided a CNA’s report with no relief from the daily fever of 102.6 degrees and head pains after taking the maximum doses of aspirin and antibiotics and the staff surgeon gave him a dirty look and told him if he had a fever and headache and to go home and take and aspirin and that she refused to take provided CNA’s report and turned her back to him and walked out of the room and that she was advised by a VA nurse the Veteran had meningitis. However, the Veteran’s contentions are not supported by the documentation contained in July 18, 2007 VA treatment record. Indeed, the July 18, 2007 VA treatment record documented the Veteran reported a maximum temperature of 101.6 degrees on Saturday and 101.3 degrees on Sunday, but he had been afebrile for two to three days since, that he had not had any major headache but did feel a ring of pressure across the front from temple to temple and his neck stiff from a “pinched nerve” and that had not changed. Further, on July 18, 2007, the Veteran was seen by a surgical resident and a staff physician as well as the staff surgeon who supervised the surgery, thus, his complaints would have been documented by these other medical providers. The Board acknowledges the contentions of the Veteran, his spouse and his mother, that the Veteran has additional disability, including meningitis, which was due to negligence or lack of proper skill on the part of VA. The question on appeal involves complex medical issues, including the appropriate level of care and risks of the July 9, 2007 sinus surgery. The Veteran, his spouse, and his mother are competent to report past and current symptoms that are readily observable through the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the Veteran’s spouse, although a CNA, explained the Veteran had a high fever after the July 9, 2007 surgery but did not directly provide an opinion. Otherwise, the Veteran and his mother they have not been shown to possess the medical expertise or knowledge required to address the complex medical issues central to the present case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, these statements do not constitute competent, probative evidence that he has additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or were the result of an event not reasonably foreseeable. Additionally, in other statements, including dated in July 2012, and in April 2013 testimony, the Veteran reported his appeal as not for his surgery but was for the after care and the deliberate refusal to treatment him for meningitis; however, as discussed his claim has been addressed broadly as a claim for any residuals of his July 9, 2007 sinus surgery. Further, in May 2016 testimony, the Veteran stated that he alleging that he incurred meningitis as a result of exposure during the sinus surgery and that his meningitis resulted in additional symptoms. However, the VHA examiner, as well as other VA examiners, as discussed above, also addressed the claim also on this basis. In his July 2012 statement, as well as in other statements, the Veteran also made a number of other allegations, including the doctor in charge considered the him a whistle blower and her intention was intentionally and deliberately to do him harm, cause bodily damage, and inflect pain and suffering. He also stated the doctor in charge give him an overdose of a controlled substance and could cause cardiac arrest. However, there is no evidence to support any of the Veteran’s allegations, including, as in August 2012 statement, that his VA medical records medical records were full of false statement and appeared to have been altered nor is the Board able to discern any material irregularities in these records. Additionally, in April 2013 testimony, the Veteran reported he had seen records retyped and re-edited by many people over and over. Further, the Board observes the Veteran’s allegations of VA medical professionals altering his records would span a period of time beginning from the surgery in 2007 to the VHA examiner’s findings in 2018, a span of years, and would have involved many VA medical providers, which common sense dictates is not plausible. Moreover, the Veteran’s allegations are inconsistent with the evidence contemporaneous to his surgery and his related VA treatment. Also, in July 2012 the Veteran submitted a document titled ethical medical questionnaire, signed by William Spring, M. D., which documented the facts, based on the Veteran’s own perception of events, which indicated that Dr. Spring would seek immediate medical care for the patient. However, as discussed above, the Veteran’s recollection of these events is not credible and are not consistent with the evidence documented in his records. As discussed in detail above, the July 14, 2007 VA telephone care nurse triage record, specifically documented that because of the seriousness of consequences of potential CNS infection, the Veteran was advised to report to urgent care for evaluation and treatment, but that he did not do so. Thereafter, a July 16, 2007 VA treatment record documented the Veteran was again contacted and that he reported his temperature was down, he still got sweats and chills but he had an appointment Wednesday here with his primary care provider and would seek medical attention sooner if his condition worsened and a July 18, 2007 VA treatment record documented the Veteran reported a maximum temperature of 101.6 degrees on Saturday and 101.3 degrees on Sunday, but he had been afebrile for two to three days since. Thus, Dr. Spring’s opinion in this circumstance lacks probative value as it is based on inaccurate facts if such facts are applied to the Veteran’s case. (Continued on the next page)   Conclusion In sum, the Board finds that the additional disability of meningitis incurred by the Veteran as a result of sinus surgery performed at the Minneapolis VAMC on July 9, 2007 was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or the result of an event not reasonably foreseeable. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not applicable, and compensation under 38 U.S.C. § 1151 is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.