Citation Nr: 21030699 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-05 881 DATE: May 19, 2021 ORDER Compensation pursuant to 38 U.S.C. § 1151 for prostate cancer residuals due to failure of VA medical personnel to properly diagnose or treat his condition on September 9, 2015, is denied. Compensation pursuant to 38 U.S.C. § 1151 for urinary retention, status/post bladder neck reconstruction, due to failure of VA medical personnel to properly diagnose or treat his condition on September 9, 2015, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from September 1961 to September 1963. 2. On September 9, 2015, the Veteran was seen for bladder pain and inability to urinate a VA facility but he did not sustain a permanent, chronic, additional disability, to include prostate cancer residuals or urinary retention as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA, or an event not reasonably foreseeable.. CONCLUSIONS OF LAW 1. The criteria for compensation pursuant to 38 U.S.C. § 1151 for prostate cancer residuals have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5121A (2012); 38 C.F.R. § 3.361 (2020). 2. The criteria for compensation pursuant to 38 U.S.C. § 1151 for urinary retention, status/post bladder neck reconstruction, have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5121A (2012); 38 C.F.R. § 3.361 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2019 and February 2021, the Veteran testified at hearings held before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In May 2019, the Board remanded the issues. They are again before the Board for adjudication. An appellant 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 appellant's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the appellant 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. In determining whether an appellant has an additional disability, VA compares the appellant's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the appellant's condition after the care or treatment is rendered. The additional disability or death must not have been due to the appellant'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 additional disability or death. Merely showing that an appellant received care, treatment, or examination and that the appellant 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 satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the appellant's or, in appropriate cases, the appellant's representative's informed consent. The second prong of proximate causation requires that the appellant's additional disability or death be an event that was not reasonably foreseeable. This fact is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures outlined in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Veteran contends that VA medical personnel failed to act appropriately and diagnose or catheterize him to drain urine on September 9, 2015, and such failure resulted in the stretching out of his bladder, causing folds and stones which then led to the diagnosis of prostate cancer and surgery (bladder neck reconstruction). He essentially argues that VA's failure to diagnose and treat him properly on September 9, 2015, resulted in additional disabilities, including prostate cancer residuals and urinary retention status/post bladder neck reconstruction. A September 9, 2015, VA treatment record stated that the Veteran seen for pain in the bladder; he was not able to urinate very much and it burned during urination. He was evaluated in urgent care. Blood work for laboratory findings was taken and he was discharged at 2:45pm. A urology consultation was ordered and he was informed to return at any time if condition worsens or was not improving. A September 9, 2015, private treatment record from Ohio State University (OSU) noted that the Veteran was seen 11:15pm. He reported having had trouble urinating for the past year but it was getting worse. He indicated that he had seen a doctor one month previously and was placed on two medications that "about killed him" (diarrhea and a lot of issues with them). On examination he presented with pain to the prostate area. He reported that he had been seen at VA earlier that day and had elevated laboratory findings. After examination, an emergency department (ED) plan of care was made. A September 9, 2015, OSU ED encounter note stated that the Veteran reported difficulty urinating for the past several months with worsening symptoms. It was also noted that he had had a CT scan showing severe enlargement of the prostate gland that caused obstructive uropathy with significant bladder distention and hydronephrosis of both kidneys and that he had been referred to a private urologist at OSU for further evaluation and management. On examination, the Veteran had severely tender right lower quadrant of the abdomen. He reported being unable to void completely and sharp shooting pains throughout body when he voided. A post voiding bladder scan was greater than 1 liter. A foley catheter was placed and over 2 liters was removed. Thereafter, his symptoms improved. The urology consultation advised the Veteran that he should be on Flomax and Proscar and he said he was prescribed these medications by his other urologist but he stopped taking them. The impression was acute urinary retention and elevated PSA. During catheterization, his respirations were even and there were no signs of distress. A September 10, 2015, private treatment note indicated that he was okay to be discharged. An ED treatment note summarized that the night before the Veteran was found to be in acute urinary retention, a foley was placed which drained 1800 mL of urine and he was admitted to the hospital for a urology consultation. The urologist recommended outpatient follow up and keeping in the foley catheter. The Veteran stated that symptoms resolved. It was noted that his urine did not appear infected and culture was sent out. It was indicated that he was to continue Flomax and Proscar. A September 16, 2015, OSU clinical record noted that the Veteran failed voiding trial and foley catheter was replaced. Later that month, the clinical records reflects that he likely had longstanding bladder outlet obstruction and elevated PSA. It was indicated that he failed trial of voiding. A biopsy was scheduled. In mid-October 2015, the Veteran underwent a private cystourethroscopy, ultrasound, and biopsy which revealed no urethral stenosis lesions or stone; there was prostatic enlargement, multiple stones in the bladder and few erythematous areas. The bladder was noted to be very large with trabeculation grade III. Later that month, a private pathology report noted adenocarcinoma of prostate and treatment options were discussed, including surgery. The Veteran declined surgery so the plan was to shrink the prostate, hoping this would improve voiding. In mid-November 2015, the Veteran underwent a radical prostatectomy with biopsy. The past medical history noted that he presented with inability to urinate for one day on September 10, 2015, had a history of benign prostatic hypertrophy (BPH), and had been on Flomax for a long time, finishing 30 days prior. Informed consent for surgery was obtained. All possible intraoperative and postoperative complications were discussed such as and not only, infection, bleeding, injury to adjacent organs (such as bowel, ureter) scrotal pain, lymphocele, hernia, incontinence, erectile dysfunction, infertility, cardiovascular and pulmonary complication and even death. He was subsequently discharged home. Private clinical records from OSU later that month noted that the Veteran was status/post trans rectal ultrasound guided biopsy of the prostate. He reported that he was doing well. Rectal bleeding and gross hematuria stopped soon after his biopsy. He denied any new lower urinary tract symptoms. He was discharged without complications and was doing well. He was noted to have a catheter. After examination the catheter was removed. In mid-December, he was doing well and was to return for follow up in three months. A March 2016 OSU treatment record noted that the Veteran was doing well; PSA was still detectable and radiation therapy was held off. It was noted that incontinence was getting better. He was told to return to check up in three months. In June 2016, he was voiding well. He was still retaining some urine and his PSA was much better. He was instructed to return to check up in one year. A January 2019 VA urology consultation noted that the Veteran had total urinary incontinence for the past two years and it was getting worse. He had a radical prostatectomy for Gleason carcinoma in November 2015 performed at OSU. Also noted was that he had developed bladder stones after the radical prostatectomy, and was treated with a laser cystolitholapaxy in January 2018. The Veteran's incontinence became worst after the cystourethropexy. At the time of the consultation, he denied a history of hematuria flank pain or fever suggestive of recurrent urinary tract infection. The treatment records from OSU were reviewed and the VA urologist opined that most likely the total incontinence was due to radical prostatectomy and cystolitholapaxy procedure. After considering the totality of the record, the evidence weighs against the appeal. Specifically, the evidence does not show that the Veteran's September 9, 2015, VA treatment/appointment was characterized by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care. Additionally, evidence has not been submitted establishing that the current prostate cancer residuals and urinary retention were the result of an event not reasonably foreseeable. To that end, in a February 2017 VA medical opinion, the clinician found that the VA treatment did not result in any increased or additional disability due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA care providers. The February 2017 VA clinician stated that there was no failure of the VA medical personnel to properly diagnose or properly treat the Veteran. There is no contrary medical opinion of record. The February 2017 clinician noted that the Veteran's cancer was a Gleason scale 6, which was considered a "mild cancer" and in some Urological literature was considered a prostate cancer that could be observed for months to years and not necessarily operated on immediately. The clinician related that the reason for the radical prostatectomy was due to prostatic hypertrophy, which had caused a prior bout of urinary retention. The clinician reflected that the records also noted that the Veteran had a bladder neck reconstruction. The clinician indicated that the surgical procedures were done at the OSU and not at the VA Medical Center. The Veteran had recorded complaints in his medical records of dysuria, frequency, and incontinence post prostatectomy, which were recognized post-surgical complications particularly in a radical prostatectomy and were not the result of malpractice. The clinician opined that there was no failure on VA's part regarding diagnosis, the treatment at the OSU Medical Center was also of the highest standard, and the post-operative conditions were expected complications that occurred with this type of surgery. The Veteran does not allege that there was no informed consent. Additionally, there is no competent evidence of the occurrence of an event not reasonably foreseeable or causation or aggravation of a disease or disability beyond its natural progress due to any VA treatment or hospitalization, resulting in any additional impairment claimed herein under the provisions of 38 U.S.C. § 1151 and 38 C.F.R. § 3.361. The Board attaches great probative weight to the February 2017 VA opinion as it was a result of a thorough review of the Veteran's medical history and contained a detailed explanation which relied on accepted medical standards in reaching a conclusion. Further, there is no evidence that any pertinent or relevant fact was misstated or mischaracterized. As such, this is highly probative evidence against the claim, especially when no contradicting medical opinion is of record. The Veteran indicated that he would submit a medical opinion in support of his claim but none has been forthcoming. In rendering this decision, the Board acknowledges the Veteran's assertions that his prostate cancer residuals and urinary retention status/post bladder neck reconstruction resulted from fault on part of VA in failing to catheterize him or otherwise properly treat him on September 9, 2015. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination report and clinical findings than to his statements. As such, the medical records are more probative than the Veteran's lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.