Citation Nr: 21023369 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-40 775 DATE: April 20, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a prostatectomy (claimed as a urethral sphincter injury) is denied. REMANDED Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. The Veteran experienced an additional disability after treatment at a VA facility by VA staff. 2. The Veteran’s 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 medical care or a reasonably unforeseeable event. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of a prostatectomy have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1956 to June 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran died. His death certificate lists the cause of death as cardiopulmonary arrest from probable acute myocardial infarction. The following June, the Appellant (the Veteran’s spouse) timely applied for dependency and indemnity compensation (DIC), death pension, and accrued benefits, which VA interprets to include a request to substitute. 38 C.F.R. § 3.1010(c)(2). In May 2020, the RO recognized the Appellant as an eligible substitute for purposes of processing the appeal to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Although the Veteran initially requested a hearing before the Board, the Appellant withdrew his request in September 2020. She reiterated her desire to proceed without a hearing in October and November 2020. The Veteran’s hearing request is, therefore, considered withdrawn. 38 C.F.R. § 20.704(e). 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of a prostatectomy (claimed as a urethral sphincter injury) is denied. 38 U.S.C. § 1151 allows veterans to pursue negligence claims against VA. To obtain benefits, the Veteran must show (1) a “qualifying additional disability,” (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. 38 U.S.C. § 1151(a). The standard for recovery is similar to the usual standard for medical malpractice and “incorporates traditional tort law notions of proximate cause.” Ollis v. Shulkin, 857 F.3d 1338, 1343 (Fed. Cir. 2017). Compensation under 38 U.S.C. § 1151 “thus contains two causation elements—a veteran’s disability must not only be ‘caused by’ the hospital care or medical treatment he received from the VA, but also must be ‘proximate[ly] cause[d]’ by the VA’s ‘fault.’” Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). VA “fault” is established when VA medical care or treatment caused disability and VA either “failed to exercise the degree of care that would be expected of a reasonable health care provider” or furnished the treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1)(i), (ii). Alternatively, to establish that the proximate cause was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361(d)(2). The event need not be “completely unforeseeable or unimaginable” to be not reasonably foreseeable, it must only “be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” Id. In the Veteran’s case, he underwent an elective radical retropubic prostatectomy in December 1998. In other words, he had his prostate removed. During the surgery, the Veteran contended his surgeon injured his urethral sphincter, which, in turn, caused his urinary incontinence. To evaluate the Veteran’s contention, VA obtained a medical opinion on the issue. After reviewing the claims file, the examiner determined that there was no evidence of a urethral sphincter injury. He emphasized that the Veteran’s medical records do not mention a urethral sphincter injury and that there was no indication that anything went wrong with the surgery. Consistent with this, the discharge summary describes the Veteran’s surgery as “uneventful” and his postoperative course as “benign.” On this view, there is no additional disability. The Veteran did not have a urethral sphincter injury before the surgery, and he did not have one after. See 38 C.F.R. § 3.361(b). That said, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Sympathetically read, the Veteran appears to contend that his surgery caused his urinary incontinence. To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before his surgery to his condition afterward. 38 C.F.R. § 3.361(b). Framed this way, two things become clear: (1) the Veteran sustained an additional disability, and (2) VA directly caused the disability. Before his December 1998 surgery, the Veteran’s medical records are silent for complaint of or treatment for urinary incontinence. But after, his medical records show he developed urinary incontinence within a month of his surgery. While the examiner does not explicitly say so, his opinion heavily implies that the surgery caused the Veteran’s disability. Based on that, the Board finds the Veteran has a qualifying additional disability that was caused by the treatment furnished by VA. Having established that an additional disability was present, question before the Board is whether VA is at fault for the Veteran’s urinary incontinence. Recall that for VA to be at fault, it must have failed to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361(d)(1)(i). When asked whether VA met this standard of care, the examiner opined that it did, finding no evidence of carelessness, negligence, lack of skill, or similar incident of fault on the part of VA. He explained that urinary incontinence is a common side effect of the Veteran’s surgery and supported his finding by citing a study published in a peer-reviewed medical journal on urology. In the study, the authors found that 59% of men were incontinent six weeks after surgery. At 58 weeks, 22% of men were incontinent. Because urinary incontinence is a known and accepted side effect of the surgery, the examiner concluded it does not indicate an adverse event or a deviation from quality of care. To the extent the Veteran contends that his urinary incontinence resulted from an event not reasonably foreseeable, he has not provided any evidence supporting his contention, and the evidence of record suggests the opposite is true. By regulation, an event not reasonably foreseeable “must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.” 38 C.F.R. § 3.361(d)(2). Relying on statistical findings from a study, the examiner described urinary incontinence as a “known,” “accepted,” and “common” side effect of the surgery. Given that, it is difficult to say that urinary incontinence is anything but an ordinary risk of the treatment. And the examiner so found, concluding that there was no evidence that the disability resulted from an event that a reasonable healthcare provider could not have reasonably foreseen. What’s more, the diagnostic code (DC) for prostate cancer residuals directs VA adjudicators to “rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant.” 38 C.F.R. § 4.115b, DC 7528, Note. Voiding dysfunction, in turn, expressly contemplates urinary incontinence. 38 C.F.R. § 4.115a. It follows that urinary incontinence was a reasonably foreseeable event following prostate surgery because it is expressly contemplated by the rating schedule (and there is no competent and credible evidence otherwise). The Board finds the examiner’s opinion adequate for decision-making purposes: he reviewed the Veteran’s claims file, his contention, the medical literature, contained clear conclusions with supporting data, and a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There are no medical opinions in the claims file casting doubt on the examiner’s conclusion. As a result, the Board finds the opinion highly probative. To summarize, the Board finds that the Veteran has a qualifying additional disability (urinary incontinence) caused by the treatment furnished by VA (the prostatectomy). However, the Board also finds that the Veteran’s urinary incontinence was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or a reasonably unforeseeable event. Lastly, neither the Veteran nor the Appellant contend, and the record does not demonstrate, that the operation was performed without informed consent. Accordingly, the Board concludes that the criteria for compensation under 38 U.S.C. § 1151 for prostatectomy residuals are not met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for asthma is remanded. The Secretary has a duty to assist claimants and must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C. § 5103A(a)(1). As part of this duty, the Secretary must, in appropriate cases, provide a claimant a medical examination when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). And where, as here, the Veteran’s service treatment records (STRs) are “fire related,” VA’s duty to assist is heightened. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). Here, the Veteran’s medical records contain competent evidence of a current disability. Starting in the mid-1990s, they show diagnoses for several respiratory disorders, including asthma, reversible obstructive airway disease (“ROAD”), chronic obstructive pulmonary disease (“COPD”), and bronchitis. For his part, the Veteran denied asthma problems before entry and contended they onset during his service overseas. Consistent with this, the Veteran’s medical records document the following: (1) a “lifelong history [of] intermittent problem[s] with ROAD,” (2) a “long history of asthma,” and (3) “chest tightness x 30 y[ea]rs.” What’s more, the Appellant reported that she traveled with the Veteran during his service overseas and watched his condition worsen. The Veteran is competent to report his experienced symptoms, such as shortness of breath, coughing, wheezing, and the like, and when those symptoms started. 38 C.F.R. § 3.159(a)(2). And the Appellant is competent to describe what she saw. Id. As there is insufficient competent medical evidence on file for VA to decide a claim, remand is warranted to obtain an appropriate medical opinion. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 79. The matter is REMANDED for the following action: 1. Arrange for an appropriate healthcare provider to review the Veteran’s claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that his asthma had its clinical onset during service or is due to an event or incident of the Veteran’s active service. 2. After undertaking any additional development deemed appropriate and giving the Appellant full opportunity to supplement the record, adjudicate the Appellant’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Appellant should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.