Citation Nr: 21014971 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 09-12 820 DATE: March 16, 2021 ORDER Compensation pursuant to 38 U.S.C. § 1151 for a disability of the bladder as a result of treatment by the VA in 2006 is denied. FINDINGS OF FACT 1. The Veteran underwent VA treatment at the end of March 2006, which resulted in the placement of a Foley catheter that was removed in approximately June 2006. 2. The Veteran has an additional bladder disability, namely, an atonic neurogenic bladder. 3. The additional disability was not caused by VA’s 2006 Foley catheterization or any other aspect of VA treatment. 4. The additional disability was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment. The disability was not proximately caused by an event not reasonably foreseeable, and VA furnished care with the Veteran’s informed consent. CONCLUSION OF LAW The criteria for disability compensation for a disability of the bladder as a result of VA treatment in 2006, under 38 U.S.C. § 1151, have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1951 to July 1955 in the United States Navy. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In March 2010, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. 1. Compensation pursuant to 38 U.S.C. § 1151 for a disability of the bladder as a result of treatment by the VA in 2006 is denied. A veteran 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 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 determining whether a veteran had 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 the care or treatment is rendered. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To establish proximate causation, the evidence must show that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); OR (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent; OR (iii) the proximate cause of the additional low back disability was an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). In reaching the determinations below, the Board considered the lay evidence. However, the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the matters at issue in such a medically complex disorder as an atonic neurogenic bladder. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). To the extent that symptoms associated with voiding of the bladder and blood in the urine are capable of lay observation, the Veteran's testimony with regard to such symptoms is competent and probative. Layno, 6 Vet. App. 465. However, he is not competent to opine on such medically complex matters as the underlying cause of his bladder disorder, the presence of negligence in the associated care, or the reasonable foreseeability of particular consequences of his medical treatment. An atonic neurogenic bladder is the result of a medically complex disease processes that requires specialized testing to diagnose. The actual cause and proximate cause of the Veteran’s current bladder disability are complex medical matters involving internal and unseen system processes, some of which are unobservable by the Veteran. The Veteran’s statements regarding matters beyond his lay competence are of no probative value in substantiating the claim. In reaching the below decisions, the Board has also considered the medical articles submitted by the Veteran’s attorney in support of the claim. One of the articles provides an overview of the neurogenic bladder, and others discuss urinary retention generally. However, this evidence does not address the facts that are specific to this Veteran's particular case. They do not pertain to the Veteran’s specific course of bladder dysfunction, or the particular treatment he received. As such, the Board finds that the information reflected in the submitted articles simply is not probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinions of the October 2008, June 2010, December 2015, and April 2020 examiners, which are more detailed and focused on the particular circumstances at issue here. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). Facts The Veteran seeks benefits under 38 U.S.C. § 1151 for the loss of use of his bladder that he asserts was caused by VA health care providers leaving a Foley catheter in place for an excessive period of time after treatment in March 2006. He reports that the failure to remove the catheter in a timely manner resulted in disuse/atrophy of muscles and/or nerves in the bladder. At his hearing before the undersigned in March 2010, the Veteran testified that he did not have voiding symptoms prior to his March 2006 VA treatment, that his Foley catheter was left in place for much too long, and that he has now has a dysfunctional, atonic, neurogenic bladder. Since the Foley catheter was removed, he has had to self-catheterize to empty his bladder. His medical treatment reports indicate a history of BPH (benign prostatic hypertrophy), with complaints of urinary frequency and voiding symptoms, dating back to 1998 and 1999. On March 24, 2006, he was admitted to the Loma Linda VA Medical Center (VAMC) due to right leg swelling. He had undergone a cardiac catheterization procedure two weeks prior. There were indications of deep vein thrombosis in the right common femoral and proximal superficial femoral veins, which was treated with a thrombin injection. Records on admission noted that he "occasionally has trouble initiating stream and feels the stream has the same force as before." On March 26, 2006, a CT (computerized tomography) scan was taken, and revealed an enlarged prostate with the superior aspect of the prostate appearing ill-defined and extending into the bladder wall. The CT also showed thickening of the inferior aspect of the bladder wall up to 15mm adjacent to the prostate, and marked distention of the bladder to a level above the umbilicus. The Veteran reported problems with urinary frequency, poor stream, hesitancy, and dribbling. On March 28, 2006, he reported obstructed voiding, and his PVR (post-void residual) was measured to be 200 cc's of volume. He was assessed with an enlarged heterogeneous prostate with the bladder distended to above the level of the umbilicus, and a Foley catheter was placed. Upon discharge that day, the primary diagnosis was deep vein thrombosis, with secondary diagnoses of right femoral pseudoaneurism, BPH, and hypertension. Follow-up care with urology was to include a foley check. Use of the Foley catheter continued throughout April 2006. On April 3, 2006, for example, it was noted that the urine in the Veteran's Foley bag was much lighter in color than it had been previously. Records indicate that by May 2006, the Veteran had moved from California to Michigan, with the catheter still in place. A May 17, 2006 VA treatment record from the VAMC in Battle Creek, Michigan, noted the presence of an indwelling catheter for BPH. The catheter was scheduled to be removed on Monday (i.e., May 22, 2006). On May 22, 2006, the Veteran reported to the Battle Creek VAMC for the removal of his catheter. He told his treating physician that every time the catheter had been removed, he could not urinate. The physician noted that the Veteran was wearing a bag and the Foley catheter was draining well. The records are unclear, but it appears the catheter was not removed on this date. On June 2, 2006, he underwent a urological consultation. The examiner noted that the Veteran had urinary retention of 1800 cc’s in March 2006, and that attempts had been made to remove the catheter twice, without success. The last catheter change had taken place on April 23, 2006. Records indicate that the Foley catheter was removed at the appointment, and the Veteran was instructed to start intermittent self-catheterization and return for a follow-up in four weeks. In July 2006, a cystoscopy and CMG (cystometrogram) were performed to examine the Veteran’s urinary retention. The anterior urethra was normal but there was obvious obstruction in the posterior urethra. The bladder neck was mildly prominent. There were no lesions or stones of the bladder. A biopsy was not needed. In August 2006, the Veteran was able to sense bladder distention and urinate a small amount by himself. He was assessed with bladder decompensation and prostatism. By September 2007, he was on CIC (clean intermittent catheterization) three to four times per day, and he was not voiding well on his own. The provider noted the prior 1800 cc post-void residual. The assessment was retention status-post cardiac catheterization and BPH/retention. By September 2008, the Veteran reported that he had been told that his bladder was "dead," with retention and possible atonicity since his cardiac catheterization. The assessment was a current atonic NGB (neurogenic bladder) and he was informed that he would need CIC "forever." On VA examination in October 2008, the examiner recounted the Veteran’s medical history and prior procedures. He noted that at the time of the Veteran’s discharge from the Loma Linda VAMC in March 2006, records showed 1800 cc’s of urinary retention, requiring the placement of a Foley catheter. The catheter remained in place until approximately May 2006. The examiner opined: It is my opinion that it is not likely that the Veteran's current bladder problem was caused or aggravated or related to the untimely removal of his catheter during the treatment at the VAMC Loma Linda California. He does have benign prostate hypertrophy, as evidenced by an enlarged prostate on examination. It is interesting to note that he had 1800 cc of urinary retention BEFORE he had his indwelling catheter placed. (emphasis in original). This almost certainly suggests bladder atony event before the catheter was placed. He currently has some degree of limitations because of the need for intermittent straight catheterizations. There are no other explanations in his medical records and on my examination that I can find to account for him developing [a] neurogenic bladder. He does not have a history of diabetes, neurological problems, or malignancies that could possibly contribute to the development of [his] neurogenic bladder. In a December 2008, Dr. A., a private physician, submitted handwritten notes recounting the Veteran’s medical history. He noted that a catheter should be removed soon after catheterization. If not, the bladder will get lazy or it will quit. In March 2010, the Veteran’s personal hearing before the Board was held. Dr. A. testified at the hearing, and stated that although the Veteran had an enlarged prostate that was two to three times the normal size prior to the VA treatment at issue, this was not unusual in 71 year-old man. He testified that in the Veteran's case, a post-void residual of 200 cc's was not problematic or indicative of dysfunction, and since he was taking Coumadin, it would not be unusual for some blood to be in the urine. He testified that it was reasonable to insert a Foley catheter under the circumstances and there was no problem with the placement of it. Although he would not characterize it as "negligence," Dr. A. opined that VA committed an "error in judgment" by leaving the catheter in place for so long that the bladder became neurogenic through disuse. It was his view that the catheter "just got forgotten" by VA. He testified that it should have been removed when the Veteran was able to stand up and resume urinating normally. In June 2010, the Board requested an independent medical expert opinion to address the claim. In June 2010, an opinion was received from Dr. C., Chief, Urology Section. Dr. C. opined: After reviewing the medical records, I feel this patient's disability has a low probability to be related to his VA treatment. The disability does not appear to be a result of carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of the VA. His disability is related to medical problems he has with his bladder & large prostate; and was a foreseeable even considering his medical co-morbidities. In January 2011, the Board requested a supplemental opinion to clarify and expand on the findings of Dr. C. In January 2011, Dr. K., the Director of the University of Alabama School of Medicine's Urology Residency Program, opined: As per the medical record, the patient had an indwelling Foley catheter from March 24, 2006 to May 22, 2006. The presence of the catheter did not cause the patient's bladder decompensation. Patients typically do not experience long term problems with bladder function even after longer periods of bladder defunctionalization. Rather, the patient likely had some impairment of bladder function prior to the catheter being placed. This is supported by the patient's marked bladder distension on a CT scan as well as documentation of significant prostate enlargement and bladder wall thickening. Also, there are notes documenting a prior history of voiding symptoms in June 1998 (urinary frequency) December 1998 (weak urinary stream) and March 24, 2006 (patient reported obstructive voiding symptoms). The patient does not have additional disability to the bladder as a result of the treatment delivered in March 2006. The patient's bladder condition was not 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 treatment. In March 2011, Dr. A. prepared a handwritten statement. He essentially asserted that the Veteran did not have a bladder disorder prior to his 2006 procedure. He again indicated that the catheter had been forgotten by VA, stating it was “never referred to or properly treated.” He stated that the placement of a catheter for two months is long enough to decompensate the bladder and cause an atonic/neurogenic bladder, explaining that “that was where the error in judgment occurred.” (emphasis in original). He stated the Veteran’s present condition is permanent, was preventable, and was incurred while under VA care. In May 2011, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court issued a Memorandum Decision, vacating the Board’s decision for a number of reasons. First, the Court found that the Board made no preliminary findings as to the first two elements for statutory compensation under 38 U.S.C. § 1151. That is, the Board did not clearly find whether or not the Veteran has an additional disability, and if so, whether it was actually caused by VA treatment. Second, the Court addressed the medical evidence. It found the January 2011 opinion of Dr. K., on which the Board relied, to contain an insufficient rationale. Dr. K.’s implication that the Veteran had a dysfunctional bladder prior to 2006 was refuted by other evidence. His finding that the Veteran had no additional disability following VA treatment was essentially incorrect. The Court explained, “prior to that treatment he had some level of urinary problems consistent with being 71 years of age with an enlarged prostate. After the treatment, however, he has a totally dysfunctional bladder; in the absence of further medical explanation, the Court views this occurrence as an additional disability.” The Court also stated that the standard of care as to how long it is reasonable to remain catheterized is unclear by the medical record. To the extent Dr. C. stated that the dysfunctional bladder was a foreseeable consequence of maintaining the catheter for an extended period given the Veteran’s co-morbidities, it was not at all clear why that course of action would not amount to negligence. The Court additionally found the Board’s rationale for discounting the testimony of Dr. A. to be unpersuasive. Third, the Court addressed the matter of informed consent, finding that it could not be determined whether there had been compliance with the requirements for informed consent, set forth in 38 C.F.R. § 17.32. The record indicated only that informed consent was obtained to administer a thrombin injection as part of the treatment of the swollen leg. The Court also stated that as there was evidence that the dysfunctional bladder was foreseeable, it should have been discussed as an associated risk of the procedure. The Court directed the Board to address the matter of informed consent in the first instance. In March 2013, the Board remanded the claim in order to obtain any and all consent forms signed by the Veteran during the course of his 2006 treatment. In November 2014, the Board again denied the claim. The Veteran appealed the Board’s decision. In May 2015, the Court issued a Joint Motion for Remand (JMR), vacating the November 2014 Board decision pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board’s November 2014 finding that the opinion of Dr. K. was “highly probative” and had a “sufficiently detailed rationale,” contradicted the Court’s findings in the June 2012 Memorandum Decision. It was error for the Board to rely on Dr. K.’s opinion to deny the claim. On readjudication, the Board was directed that it “must consider Dr. [K.’s] opinion to be inadequate and to have no probative value.” In November 2015, the Board requested another independent medical expert opinion. In December 2015, Dr. R., Chief of Urology at William S. Middleton Memorial Veterans Hospital, provided several findings, with citation to two medical references. First, he found the Veteran had bladder dysfunction prior to his 2006 VA treatment. He explained that the March 2006 CT revealed a thickened bladder wall, a distended bladder, and an enlarged prostate. These three features are signs of bladder outlet obstruction, which is usually the result of benign prostatic hyperplasia. He had mild lower urinary tract symptoms dating back to 1998 and 1999, but they were not severe enough or bothersome enough to warrant continued treatment. Indeed, on March 26, 2006, he reported problems with urinary frequency, poor stream, hesitancy, and dribbling. After reviewing the 2006 CT scan, the medial team astutely recommended checking the post-void residual. Dr. R. opined that the Veteran’s amount of post void residual was significant, and indicated that it was likely present prior to his hospitalization and Foley catheterization. An elevated post void residual can lead to chronic kidney disease, recurrent urinary tract infections, and bladder stones. Second, addressing whether the VA treatment caused an additional bladder disability, he found that it did not. He stated the Veteran had underlying bladder problems before the 2006 treatment, which ultimately resulted in his current condition. He stated that patients can have “silent” urinary retention with minimal to no symptoms. Medical literature does not show that an indwelling Foley catheter results in bladder dysfunction or an inability to void; to the contrary, Foley catheters are used to treat urinary retention. He disputed the findings of Dr. A., stating that the adult bladder does not need to empty and fill to maintain its function. Even in patients requiring long-term catheterization for traumatic injuries or other medical problems, normal voiding ensues once the catheter is removed. Rather, chronic over-distention of the bladder has been shown to lead to its underactivity, causing the bladder muscle (detrusor) to weaken over time. He found the Veteran’s bladder had just reached its end-point coincident to his admission in 2006, and this was part of the natural disease process. He added that other factors, including the prior heart catheterization, pseudoaneurysm, and DVT, were inciting events that ultimately led to the bladder’s complete unwillingness to empty anymore. Third, addressing negligence, while two months of catheterization could be argued as longer than necessary, this had no impact on the end outcome for the above reasons. Last, addressing reasonable foreseeability, Dr. R. found that the bladder disability was reasonably foreseeable given the underlying medical problems of benign prostatic hyperplasia, mild lower urinary tract symptoms, and chronic urinary retention. Because the Veteran had “silent” symptoms, he did not seek treatment at an earlier stage when his bladder was still functional. In March 2016, Dr. A. provided a statement responding to Dr. R.’s findings. He found the Veteran did have an additional disability, which was caused by the prolonged placement of the Foley catheter. In responding to the question on whether there was VA negligence from prolonged use of the catheter, he stated, “Yes. In my opinion, the notes in the patient’s record show the VA committed an ‘error in judgment.’” (emphasis in original). He stated, “all kinds of studies (not the two, reference in Dr. [R.’s] letter) prove that removing a Foley catheter in 5 to 7 days is the normal protocol and is much less likely to cause of the complications listed (U.T.I.’s, epididymitis, orchitis, bladder atony) than a 2 month catheter.” In response to the question of reasonable foreseeability, he stated that no one could have foreseen or predicted such a bladder disability after catheterizing a patient, and that this amounted to negligence. In April 2016, the Board remanded the claim for initial RO consideration of the evidence, as requested by the Veteran. In February 2018, the Board denied the claim. The Veteran appealed the Board’s decision to the Court. In an October 2018 JMR, the Board’s February 2018 decision was vacated because of its reliance on the December 2015 VA medical opinion of Dr. R. Specifically, on the matter of actual causation, the examiner limited his medical opinion to the question of whether the use of an indwelling Foley catheter at a VA facility in 2006 resulted in an additional bladder disability, without considering the broader question of whether any other aspect of the March 2006 VA treatment, including the left heart catheterization procedure, resulted in an additional bladder disability. Additionally, on the matter of proximate causation, the examiner made conflicting statements on whether the bladder disability was a reasonably foreseeable consequence of the Foley catheterization. The parties additionally found that the Board failed to ensure substantial compliance with the June 2012 Memorandum Decision by failing to address the matter of informed consent. In the February 2018 decision, the Board found that the analysis did not need to advance to the question of proximate causation, given its determination on actual causation. However, the parties found that as the Board needed to assess whether the December 2015 opinion was adequate on the matter of actual causation, on readjudication the Board should address the matter of informed consent in the first instance. In March 2019, the Board remanded the claim in order to obtain a medical opinion addressing whether any aspect of the Veteran’s March 2006 VA treatment, including the Foley catheter and the left heart catheterization procedure, caused the atonic neurogenic bladder. On VA examination in May 2019, the examiner stated that a response to the questions posed by the Board would require months of detailed record review, interviews, and medicolegal expertise, which the examiner did not have. The examiner noted that the questions had already been extensively reviewed, including by a VA chief urologist. Nonetheless, he opined that the use of a Foley catheter would not result in a neurogenic bladder based on his own experience in placing and removing thousands of Foley catheters, and on medical research. He responded to the question on reasonable foreseeability by again stating that he was not qualified to answer the question. In October 2019, the May 2019 examiner provided an addendum opinion, clarifying that it was less likely than not that any aspect of the March 2006 VA treatment, including the Foley catheter and the heart procedure, caused the atonic neurogenic bladder. In February 2020, the Board remanded the claim in order to obtain a further medical opinion. In April 2020, a VA urologist reviewed the claims file and summarized the evidence. He opined that the Veteran’s neurogenic bladder was not caused by any aspect of his 2006 treatment, including the extended use of the Foley catheter or the left heart catheterization procedure. He disagreed with the opinion of Dr. A. that the Foley catheter led to a “‘complete and permanent shutdown of his bladder.’” Rather, the evidence indicated that it is likely the atonic bladder was present prior to the 2006 VA treatment. His opinion was founded on a review of the records dated from 2006 to 2008 and the diagnostic studies conducted, including cystoscopy and urodynamic studies. He explained that the presence of an indwelling Foley catheter does not predispose a person to the development of an atonic bladder; to the contrary, an atonic bladder would be improved by the presence of an indwelling catheter. Analysis At the outset, in the May 2015 JMR, the parties instructed the Board to consider the January 2011 opinion of Dr. K. to be inadequate and of no probative value. The Board will thus not consider this evidence in the analyses below. Additional Disability & Actual Causation The Board finds that the first requirement of a 38 U.S.C. § 1151 claim, an additional disability, is established. His additional disability is an atonic neurogenic bladder. He did not have this disability prior to the 2006 VA treatment. As for the second requirement of a 38 U.S.C. § 1151 claim, actual causation, the law and regulations state that merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. As described above, the probative evidence supporting this element of the claim consists of the opinions of Dr. A. In December 2008 handwritten notes, Dr. A. stated that prolonged catheterization will cause a bladder to get lazy or quit. He testified in March 2010 that the bladder became neurogenic through disuse. In March 2011 handwritten notes, he stated that the Veteran did not have a bladder disorder prior to his 2006 procedure, and that the placement of a catheter for two months is long enough to decompensate the bladder and cause an atonic/neurogenic bladder. In March 2016, he indicated that the prolonged placement of the Foley catheter caused the disability. He stated that no other aspect of the 2006 VA treatment, including the heart catheterization, were implicated in the development of the disability. The probative evidence against this element of the claim consists of the opinions of the October 2008 VA examiner, Dr. C. in June 2010, Dr. R. in December 2015, and the April 2020 VA examiner. Each of these examiners concluded that the record indicates the presence of a silent bladder disability that existed before the Veteran received VA treatment in 2006. In rendering his opinion, the October 2008 VA examiner cited the presence of urinary retention before the catheter was placed. Dr. R. in December 2015 cited three signs of bladder outlet obstruction that were already present at the time of the March 2006 CT scan, namely, a thickened bladder wall, a distended bladder, and an enlarged prostate. He explained that over-distention of the bladder is known to result in underactivity, and the Veteran’s bladder had simply reached its end-point coincident to his 2006 admission. He noted that an adult bladder does not need to empty and fill in order to maintain function, and that even in patients requiring long-term catheterization for traumatic injuries or other medical problems, normal voiding ensues once the catheter is removed. Moreover, Dr. R. and the April 2020 examiner additionally opined that medical literature does not support that the use of a Foley catheter results in bladder dysfunction or an inability to void; to the contrary, it is a treatment tool for urinary retention. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The Board finds the opinion of Dr. A., expressed in reports of December 2008, March 2011, and March 2016, as well as at the March 2010 hearing, to be of little probative value. First, his conclusions are not based on an accurate review of pertinent facts. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate.) He repeatedly asserted that the Veteran’s catheter was “forgotten.” See Hearing Testimony, p. 17; March 2011 report stating, “the foley was left in his bladder for 2 months, was never referred to or properly treated during that time;” March 2016 report stating, “[the Veteran’s] follow up appointment never even mentioned his continued indwelling Foley catheter until someone stumbled on that fact 2 months after insertion.” However, on May 22, 2006, the Veteran reported to his treating physician that “everytime [sic]” his catheter had been removed he could not urinate, indicating that the catheter had been assessed and removals had been attempted. Indeed, on urological consultation in June 2006, he reported that attempts had been made to remove the catheter twice, without success, and that his catheter had last been changed on April 23, 2006. Moreover, at the hearing, the Veteran testified that he was receiving follow-up treatments for the catheter, which were occurring on a “reasonable” basis. Hearing Transcript, p. 11. Dr. A. founded his opinions based on findings that the catheter was forgotten, never referred to, and not properly treated. This is inconsistent with the facts documented in VA treatment records and the Veteran’s own testimony, rendering his opinion of little probative value. Second, Dr. A. did not address the role of the preexisting bladder dysfunction in the development of the neurogenic bladder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). VA treatment records document the presence of urinary problems that already existed at the time of the Veteran’s March 2006 hospitalization. Records from 1998 and 1999 document urinary symptoms, including complaints of having to urinate a lot (June 1998 and October 1999) and that the urinary stream was not as strong as it used to be (December 1998). On March 26, 2006, prior to the insertion of the Foley catheter and just two days into his admission, the Veteran was already found to have a thickened bladder wall, a distended bladder, and an enlarged prostate. He reported problems with urinary frequency, poor stream, hesitancy, and dribbling. He had obstructed voiding and a post-void residual measurement was obtained. At the hearing, Dr. A. suggested that the March 2006 post-void residual was not problematic, and the size of the Veteran’s prostate was normal given his age. However, he has not addressed the significance of the remainder of the preexisting medical findings and symptoms, including problems with urinary frequency, poor stream, hesitancy, or dribbling, the thickened bladder wall, or the distention of the bladder to above the level of the umbilicus. Dr. A. merely points to the catheter as the sole cause of the current disability. Third, the opinions of Dr. A. lack reference to any corroborating resources. For example, although he asserted that catheterization for two months will cause an atonic or neurogenic bladder, and that it was an error in judgment to leave the catheter in for longer than 5 to 7 days, he provided no citation to medical evidence to support his statements. In comparison to Dr. R.’s citation to specific medical resources in support of his opinions, in his March 2016 report, Dr. A. has simply stated that “all kinds of studies” support his assertions. In contrast, the Board finds the opinions provided by three different urologists (Dr. C., Dr. R., and the April 2020 VA examiner), as well as the October 2008 VA examiner, to be highly probative. The examiners based their conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. They reviewed and addressed the reported history and symptoms in rendering the opinions, reviewed the medical literature, and provided a rationale for the conclusions reached. The examiners explained the significance of both the Veteran’s preexisting urinary symptoms, as well as the extended use of the Foley catheter, in providing their opinions. Accordingly, these opinions provide strong evidence against the claim. In reaching these determinations, the Board has considered the concerns of the Court and the parties, expressed in the June 2012 Memorandum Decision, and JMRs of May 2015 and October 2018, as they pertain to the actual causation element of the claim. The Board will address these concerns in chronological order. In the June 2012 Memorandum Decision, while addressing the opinion of Dr. K. which is not discussed here, the Court found the determination that the Veteran had a dysfunctional bladder prior to his March 2006 VA treatment was refuted by the record, citing the fact that the Veteran was able to void in a normal fashion after the CT scan. Since the time of the Memorandum Decision, however, further medical evidence has been obtained explaining the significance of the Veteran’s bladder dysfunction prior to March 2006. Specifically, as explained by Dr. R. in December 2015, the Veteran presented with three signs of bladder outlet obstruction, his bladder symptoms had largely been “silent,” and the natural history of such an untreated disease process can cause bladder dysfunction. As described above, the Board finds that the medical evidence obtained since the time of the Memorandum Decision indeed indicates the presence of a dysfunctional bladder prior to March 2006, despite the Veteran’s ability to void normally after his CT. The Court also found it tenuous to conclude that the Veteran’s bladder just happened to become dysfunctional around the same time that the Foley catheter was placed. Additionally, the Court found that the Board’s discounting of Dr. A.’s testimony based on the fact that he had not reviewed the claims file or discussed evidence indicating urinary symptoms prior to the 2006 treatment was not persuasive as preexisting urinary symptoms seemed only “marginally related” to the issues of direct causation. Again, since the time of the Memorandum Decision, additional medical evidence has been obtained addressing both of these points, and the Board finds the evidence fully adequate and persuasive. The May 2015 JMR does not address the matter of actual causation, other than by its direction to the Board to consider the opinion of Dr. K. to be inadequate and of no probative value. In the October 2018 JMR, the parties found that in his December 2015 report, Dr. R. limited his medical opinion to the question of whether the use of an indwelling Foley catheter at a VA facility in 2006 caused an additional bladder disability, without considering the broader question as to whether any other aspect of the March 2006 VA treatment, including the left heart catheterization procedure, resulted in an additional bladder disability. Since the time of the JMR, the April 2020 VA examiner opined that the Veteran’s neurogenic bladder was not caused by any aspect of his 2006 treatment, including the extended use of the Foley catheter or the left heart catheterization procedure. Another etiology, a preexisting bladder disability, was identified. His opinion was founded on a review of the records dated from 2006 to 2008 and the diagnostic studies conducted, including cystoscopy and urodynamic studies. As the weight of the evidence does not demonstrate that the actual hospital care, medical or surgical treatment, or examination provided by VA caused the current bladder disability, normally, the analysis need not advance to the question of proximate cause. Mangham v. Shinseki, 23 Vet. App. 284 (2009); Loving v. Nicholson, 19 Vet. App. 96 (2005); see also 38 U.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d). Indeed, citing Loving in the June 2012 Memorandum Decision, the Court stated, “a finding as to direct cause is antecedent to any finding on negligence. Similarly, a finding on foreseeability is necessary only if the disability was caused by VA treatment.” June 2012 Memorandum Decision, p. 4. However, in the October 2018 JMR, the parties found that the Board failed to ensure substantial compliance with the June 2012 Memorandum Decision by failing to address the matter of informed consent. The parties directed that on readjudication, the Board should address the matter of informed consent in the first instance. The Board will thus turn to a discussion of proximate causation, and will address VA fault, reasonable foreseeability, and informed consent. Proximate Causation - VA Fault As for carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA, initially, the evidence does not show fault on the part of VA in the need for the initial placement of the catheter, or in the techniques involved in the physical placement itself. The dispute lies in the length of time the catheter was in place. In support of this element of the claim is the opinion of Dr. A., who asserts that VA breached a standard of care by failing to timely address the duration of the catheterization. He clearly emphasized on several occasions that VA committed an error in judgment by leaving the catheter in place for so long that the bladder became neurogenic through disuse. He has stated that the catheter was “forgotten,” and “never referred to or properly treated” by VA. Evidence against this element of the claim includes the June 2010 opinion of Dr. C., and the December 2015 opinion of Dr. R. Dr. C. stated that it did not appear there was evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of the VA. Dr. R. opined that while two months of catheterization could be argued as longer than necessary, this had no impact on the end outcome (emphasis added). Rather, the Veteran’s bladder had reached its end-point coincidentally at the time of his 2006 admission, representing the natural course of the disease process. The Board finds the preponderance of the evidence is against a finding of VA fault with regard to the duration of the Veteran’s Foley catheterization. As discussed above, the conclusions of Dr. A. are not based on accurate facts; VA treatment records and the Veteran’s hearing testimony directly contravene Dr. A.’s finding that the catheter was forgotten, never referred to, or not properly treated. Additionally, his opinions lack reference to any corroborating resources. For these reasons, the Board finds his opinion is of low probative value and is not persuasive. By contrast, the opinions of Dr. C. and Dr. R. provide strong evidence against the claim for the reasons described above. Compounding the negative opinions of Dr. R. and Dr. C. is the fact that during the course of his catheterization, the Veteran moved from California to Michigan with the catheter still in place. The argument that VA neglected or forgot about his catheter is not only refuted by the VA treatment records, but weakened by the fact that the Veteran voluntarily discontinued ongoing VA care at the Loma Linda facility. See Hearing Transcript, p. 13 (addressing the circumstances and timing of the move). In reaching these determinations, the Board has considered the concerns of the Court and the parties, expressed in the June 2012 Memorandum Decision, and JMRs of May 2015 and October 2018, as they pertain to the element of VA fault. The Board will address them chronologically. In June 2012, the Court noted evidence indicating that the resultant dysfunctional bladder was a foreseeable consequence of maintaining the catheter in place for an extended period given the Veteran’s medical co-morbidities. The Court found that if this was the case, “it is not at all clear why that course of action would not amount to negligence or other fault.” While the Veteran’s current bladder condition may have been a foreseeable outcome, it did not occur due to VA negligence or other fault, as explained by Dr. R. Rather, the neurogenic bladder was a foreseeable outcome of the underlying bladder disease. The fact that an action may have a foreseeable outcome does not mean that negligence occurred if the foreseeable event comes to fruition. Neither the May 2015 JMR nor the October 2018 JMR addressed deficiencies in the medical evidence obtained or the Board’s previous findings regarding the element of VA fault. Proximate Causation - Reasonable Foreseeability As for reasonable foreseeability, the record again contains conflicting opinions. In support of this element of the claim is the opinion of Dr. A. who, in March 2016, stated that no one could have foreseen or predicted such a bladder disability after (initially) catheterizing a patient. Evidence against this element of the claim includes the June 2010 opinion of Dr. C., and the December 2015 opinion of Dr. R. Dr. C. stated that the development of the neurogenic bladder was foreseeable considering his medical co-morbidities. Dr. R. opined that the bladder disability was reasonably foreseeable given the underlying medical problems of benign prostatic hyperplasia, mild lower urinary tract symptoms, and chronic urinary retention. The Board finds the preponderance of the evidence is against this element of the claim. The development of the neurogenic bladder was reasonably foreseeable given the underlying bladder dysfunction. As discussed above, the opinion of Dr. A. is not persuasive on this point. Dr. A. failed to address the role of the preexisting bladder dysfunction in the development of the neurogenic bladder in opining on the matter of reasonable foreseeability. As also discussed, his conclusions are not based on accurate facts and lack reference to corroborating resources. By contrast, the opinions of Dr. C. and Dr. R. provide strong evidence against the claim for the reasons described above. In reaching these determinations, the Board has considered the concerns of the Court and the parties, expressed in the June 2012 Memorandum Decision, and JMRs of May 2015 and October 2018, as they pertain to the element of reasonable foreseeability. They will be addressed chronologically. In June 2012, the Court did not address the matter of reasonable foreseeability other than as discussed in the section above pertaining to VA fault. The May 2015 JMR similarly did not address this aspect of the claim. In the October 2018 JMR, the parties noted that there appeared to be an internal inconsistency in Dr. R.’s December 2015 report on the matter of reasonable foreseeability. Dr. R. stated that the bladder disability was reasonably foreseeable following the two months of Foley catheterization since he presented with signs of BPH, lower urinary tract symptoms, and urinary retention with a post-void residual of 999 milliliters. However, he subsequently stated that the Foley catheter, as well as the duration of catheterization, did not foreseeably cause the bladder disability. The Board acknowledges the parties’ concerns, but finds the statements are not internally inconsistent as they address separate matters. The first statement pertains to the matter of reasonable foreseeability of the present disability; Dr. R. opined that the bladder disability was reasonably foreseeable because of the underlying bladder dysfunction. The second statement pertains to actual causation; Dr. R. opined that neither the catheter, nor the duration of catheterization, caused the bladder disability. While he unfortunately inserted the word, “foreseeably” into that sentence, the Board does not find, based on a reading of the report in its entire context, that Dr. R. intended to use the word as a legal term of art on the matter of reasonable foreseeability. Proximate Causation - Informed Consent VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment; the expected benefits; reasonably foreseeable associated risks, complications, or side effects; reasonable and available alternatives; and anticipated results if nothing is done. See 38 C.F.R. § 17.32(c). Signed consent is required for all diagnostic and therapeutic treatments or procedures that: (i) Require the use of sedation; (ii) Require anesthesia or narcotic analgesia; (iii) Are considered to produce significant discomfort to the patient; (iv) Have a significant risk of complication or morbidity; or (v) Require injections of any substance into a joint space or body cavity. The informed consent process, including signed consent form, must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). The record does not contain a document showing specific consent for the placement of the Foley catheter. There is record, however, of a signed and dated consent form for the precursor procedure, namely the thrombin injection, which included the Veteran's acknowledgement of the risks of such procedure. Significantly, it also included his consent to the placement of a "medical device in my body." The Veteran, in his testimony, further acknowledged that he consented to the placement of the Foley catheter. Hearing Testimony, p. 15. To the extent the medical record does not document that the Veteran was explicitly advised of the risk of developing a neurogenic bladder, the absence of a specific list of risks is not evidence that VA failed to obtain informed consent. See Halcomb v. Shinseki, 23 Vet. App. 234, 241(2009) (holding that the veteran did not establish a lack of informed consent before eye surgery as the basis for entitlement to compensation benefits for loss of vision of the eye under 38 U.S.C. § 1151 based solely on the failure of consent documents to list specific disclosed risks). Furthermore, the failure to advise a patient of a foreseeable risk can be considered an immaterial deviation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. McNair v. Shinseki, 25 Vet. App. 98, 107 (2011). In this regard, the adjudicator must not only look to the likelihood of an undisclosed risk materializing, but also recognize that some foreseeable risks may be minor when compared to the foreseeable consequences of continuing without undergoing the treatment. Id. The adjudicator must consider the consequences of proceeding with surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery. Id. at 108. Here, the Foley catheter was placed in March 2006 because the Veteran’s underlying CT scan revealed signs of bladder outlet obstruction, prompting the medical team to assess his post-void residual. As explained by Dr. R. in the December 2015 report, an elevated post-void residual can lead to chronic kidney disease, recurrent urinary tract infections, and bladder stones. These were the risks of foregoing catheterization. There is no dispute that catheterization was needed; even Dr. A., at the March 2010 hearing, testified that the catheterization was needed to prevent obstruction, and was “very reasonable.” See Hearing transcript, pp. 9-10. The Board finds that a reasonable person, diagnosed with benign prostatic hyperplasia manifested by a bladder markedly distended to a level above the umbilicus, would proceed with catheterization even if informed of the foreseeable risk of developing a neurogenic bladder. As described by three urologists and the October 2008 VA examiner, the development of the Veteran’s neurogenic bladder was inevitable. The bladder had reached its end-point of functioning due to chronic over-distention. As a neurogenic bladder would have occurred regardless of the catheterization, the Board finds that a reasonable person would have proceeded with catheterization. The risks of not catheterizing included continued obstruction, kidney disease, recurrent urinary tract infections, and bladder stones. As such, to the extent that VA did not explicitly advise the Veteran of the foreseeable risk that he would develop a neurogenic bladder, this constitutes an immaterial deviation from informed consent procedures. In reaching this determination, the Board has considered the concerns of the Court and the parties, expressed in the June 2012 Memorandum Decision, and JMRs of May 2015 and October 2018, as they pertain to the element of informed consent. They will be addressed chronologically. In June 2012, the Court found that the matter of informed consent required initial consideration by the Board, which has now occurred. The Court noted that as there was evidence that the dysfunctional bladder was foreseeable, it should have been discussed as an associated risk of the procedure. As discussed above, the Board finds that any failure in this regard constitutes an immaterial deviation from informed consent procedures. The May 2015 JMR did not address the mater of informed consent. The October 2018 JMR directed the Board to comply with the underlying directives of the June 2012 Memorandum Decision. As noted, this has occurred. Conclusion The Board is sympathetic to the fact that the Veteran has a significant medical disability. However, the preponderance of the evidence is against the claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to compensation under 38 U.S.C. § 1151 for a disability of the bladder as a result of treatment by the VA in 2006 is denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.