Citation Nr: 21023934 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-41 840 DATE: April 21, 2021 ORDER Compensation under 38 U.S.C. § 1151 for residuals of a prostatectomy, to include left femoral nerve palsy, caused by VA medical treatment in August 2009, is granted. FINDING OF FACT 1. The Veteran has an additional disability due to the residuals of a prostatectomy, to include left femoral nerve palsy, due to the hospital care, medical or surgical treatment, or examination furnished to the Veteran by VA medical staff in August 2009. 2. The Veteran’s residuals of a prostatectomy, to include left femoral nerve palsy, resulted from VA treatment and were not a reasonably foreseeable consequence of such treatment. CONCLUSION OF LAW The criteria for establishing entitlement to benefits under 38 U.S.C. § 1151 for the residuals of a prostatectomy, to include left femoral nerve palsy, caused by VA medical treatment from August 2009, have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from April 1974 to March 1975. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified during a hearing before another Veterans Law Judge (VLJ) in July 2018. A transcript of that hearing is of record. In March 2021, the Veteran was notified via letter that the VLJ who conducted his hearing was no longer employed by the Board. The letter also informed the Veteran that he was entitled to another hearing before a VLJ who would participate in the final determination of his case, should he so desire. See 38 C.F.R. § 20.707. The Veteran was given 30 days to reply to the letter, but no response was received. The Board therefore concludes that the Veteran does not desire another hearing and will proceed accordingly. The Board previously remanded this claim in December 2018 and August 2020 for further evidentiary development. The Board is now satisfied that there was substantial compliance with its latest remand. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Veteran was provided an opportunity to submit additional records and he was subsequently afforded an additional VA examination regarding this claim. 38 U.S.C. § 1151 Under the relevant statutes and regulations, for all claims received by VA after October 1, 1997, compensation shall be awarded for a post-service "qualifying additional disability" in the same manner as it were service-connected. For VA purposes, a "qualifying additional disability" is a disability that was: (1) not the result of the Veteran's willful misconduct; (2) caused by hospital care, medical or surgical treatment, or an examination furnished the Veteran under any law administered by the Secretary of Veterans Affairs; and (3) the proximate cause of the disability or death was either (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. Regarding the second element, merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Further, 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 and properly treat the disease or injury proximately caused the continuance or natural progress. Id.; 38 C.F.R. § 3.361(c)(2). Regarding the third element, to establish proximate cause of a veteran's additional disability or death based upon the event not being reasonably foreseeable, the event need not be completely unforeseeable or unimaginable. Instead, it 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). Compensation under 38 U.S.C. § 1151 for residuals of a prostatectomy, to include left femoral nerve palsy, caused by VA medical treatment The Veteran seeks compensation benefits for the residuals of a prostatectomy, to include left femoral nerve palsy, claimed as due to negligence on the part of treating VA medical personnel. After a thorough review of the evidence of record, the Board finds that compensation under 38 U.S.C. § 1151 is warranted for the residuals of a prostatectomy, to include left femoral palsy. Here, the objective medical evidence indicates that there is an additional disability (left femoral palsy) that resulted from VA’s medical treatment of the Veteran. 38 C.F.R. § 3.361(c)(1). Specifically, the Veteran was afforded a VA examination in April 2011, and the examiner stated that his left femoral nerve palsy was secondary to his August 2009 open radical prostatectomy. While there is no evidentiary dispute that the treatment caused the additional disability, to establish "proximate cause" under 38 C.F.R. § 3.361(d), there must also be evidence that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing care proximately caused the Veteran's additional disability or death. This may be demonstrated in two ways, by evidence indicating that either (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, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. Id. For the reasons discussed below, the Board will focus on the issue of informed consent, as the evidence regarding this aspect of the degree of care provided is sufficient to grant the benefit sought. Title 38, section 17.32 requires the health care provider having primary responsibility for a patient to explain, inter alia, the "reasonably foreseeable associated risks" of the treatment. Under this section, informed consent is "the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment." Importantly, "the informed consent process must be appropriately documented in the health record." 38 C.F.R. § 17.32(d)(1). The Veteran asserts, through his representative, that he was not informed of the possibility of femoral nerve palsy resulting from his prostatectomy, and the medical evidence of record fails to disclose any documentation that the Veteran was either informed specifically of the risks of femoral nerve palsy. Of note, while the Veteran signed a prostatectomy treatment consent form in August 2009, in which the Veteran completed a consent form that listed a risk of “[d]amage to nearby structures,” it did not list a risk of femoral nerve palsy. Nevertheless, there is a statement in the record that the Veteran was orally informed of the risks of neurological injury. In a pre-operative attending note the day of the prostatectomy, the physician wrote that he and his resident “specifically counseled” the Veteran about a list of risks, including “neurologic injury with possible permanent neurological deficit and/or pain.” For his part, the Veteran testified at his hearing that the only risk factor involving nerves that was discussed prior to the surgery was the potential of erectile dysfunction. This is consistent with the signed consent form, as one of the known risks listed is “[i]mpotence, or problems with penile erection.” The Board also recognizes the negative opinions from the February 2012 and November 2020 VA examiners. The February 2012 examiner opined that the Veteran’s femoral nerve palsy was less likely than not due to the VA medical personnel’s failure to properly treat his prostate cancer, as nerve damage was a rare but foreseeable risk of the surgery. Likewise, the November 2020 examiner opined that his femoral nerve palsy was not the result of carelessness, negligence, lack of skill, error in judgment, or similar fault of his prostatectomy. Although this examiner opines that most femoral nerve injuries are “self-limited, and symptoms resolve within weeks”, the Veteran’s symptoms appear to continue to this day. The opinion also states that most femoral nerve injuries “can be prevented with a thorough understanding of the pelvic anatomy and proper placement of self-retaining retractors.” The Board finds this last opinion to be internally inconsistent, as it opines that nerve injuries during a prostatectomy are mostly avoided through proper care, but ultimately states that his femoral nerve palsy was not the result of an error in judgment, carelessness or similar fault during his prostatectomy. With this evidence in mind, the Board emphasizes that there is a difference between an event that is “reasonably foreseeable” and “any possible outcome.” An injury resulting from treatment need not be completely unforeseeable or unimaginable, but instead must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. See Schertz v. Shinseki, 26 Vet. App. 362, 368 (2013), citing 38 C.F.R. § 3.361(d)(2). The purpose of this was partly because, as was noted in Schertz, “an extremely cautious treating physician may take the ‘kitchen sink approach,’ informing a patient of numerous risks,” but this would not make such risks “reasonably foreseeable.” Id. In the Board’s view, such is the situation here. Specifically, although it is possible that the Veteran was informed that his prostate surgery could potentially impact his femoral nerve, it does not appear that either the Veteran or his treating physicians believed this was a reasonably foreseeable outcome. Indeed, even the VA examiner in 2012 considered this injury to be rare occurrence. Therefore, while injury to the femoral nerve is a recognized risk in prostate surgery, the evidence does not suggest that this was a reasonably foreseeable event, regardless of whether the Veteran was notified about it or not. As a result, when resolving all reasonable doubt in the Veteran's favor, compensation benefits for additional disability manifested as left femoral nerve palsy is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald