Citation Nr: 21032883 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-44 490 DATE: May 28, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for pseudomonas infection, right orchiectomy and scrotal resection, and prostate resection, claimed to have resulted from VA cystoscopy and prostate biopsy, is remanded. REASONS FOR REMAND The Veteran served in the U.S. Navy from September 1966 to June 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 Regional Office (RO) rating decision. In June 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). In January 2021, the Board notified the Veteran that the Board no longer employed the VLJ who conducted the June 2019 hearing and that he had the right to another Board hearing. As the Veteran has not responded to date, the Board is assuming the Veteran does not want another hearing and proceeding accordingly. The Board remanded this case for further development in April 2020. The Board regrets the additional delay, but another medical opinion is needed prior to adjudication of the Veteran's claim. The Veteran is seeking compensation for a pseudomonas infection that he claims resulted from a VA cystoscopy and prostate biopsy conducted in March 2014 and caused subsequent residuals, to include right orchiectomy and scrotal resection, and prostate resection. Specifically, the Veteran has asserted at different times during the course of the appeal that either the cystoscopy equipment or the equipment used to conduct a needle biopsy of his prostate was contaminated. In support of his assertions, the Veteran has submitted articles discussing spread of a "superbug" at certain hospitals in part due to contamination of scopes used to conduct various diagnostic procedures. In its April 2020 remand, the Board asked a clinician to provide an opinion on whether the Veteran had suffered an additional disability as a result of the March 2014 cystoscopy and prostate biopsy. If the clinician found there was an additional disability, the Board asked the clinician to provide an opinion on whether the additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or, was proximately caused by an event not reasonably foreseeable. The Board also asked the clinician to specifically address both the Veteran's assertion that a contaminated camera caused the pseudomonas infection and whether the course of treatment for that infection was the course a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have used in light of the Veteran's health history. The requested opinion was provided in October 2020. The clinician who examined the Veteran and issued the opinion noted that the Veteran did not have a known pseudomonas infection prior to the cystoscopy; that urine cultures preceding that procedure were negative; and that the Veteran developed an infection the day after the cystoscopy. As a result, the clinician concluded that the claimed disability was at least as likely as not caused by the VA treatment at issue. In support of his opinion, the clinician stated that pseudomonas urinary infections are a common nosocomial infection and can be complicated, and contaminated urodynamic equipment is a known cause for nosocomial infections. The clinician also cited a medical journal article on an outbreak of multidrug-resistant pseudomonas aeruginosa infection following urodynamic studies using a contaminated transducer. Regarding whether the Veteran's additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, the clinician concluded that the Veteran's pseudomonas infection was at least as likely as not due to careless or negligent use of equipment. In support of that conclusion, the clinician characterized the Veteran's pseudomonas infection as beginning the day after his March 2014 procedure and stated that a reason for contaminated urodynamic equipment is not recognizing that a part of the equipment used is a single use part. The clinician stated that such lack of recognition was at least as likely as not the reason for the equipment being contaminated. Regarding whether the additional disability sustained by the Veteran resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, the clinician stated yes. However, the clinician went on to explain that contaminated equipment was a known possibility for surgical procedures and is covered under the consent under the more general concept of a postoperative infection as a possible outcome. Based on the provided rationale, it appears the clinician misread that question and intended to state that infection could have been reasonably foreseen. Unfortunately, the opinions described above are based on an inaccurate factual premise. Specifically, the October 2020 clinician stated, without further explanation, that the Veteran contracted pseudomonas the day after his March 7, 2014 VA diagnostic procedures. However, pseudomonas was not confirmed by urine culture until July 2014. Indeed, urine cultures conducted immediately after the procedure were either inconclusive or sterile, and cultures associated with the Veteran's May 2014 epididymectomy were negative. While the Veteran did present with epididymitis the day following the March 2014 procedures, the medical evidence reflects that its origin was unknown. Furthermore, the Veteran's VA treatment records document a history of urinary tract infections that predate the March 2014 procedures, and the Veteran's VA urology team suspected that his ongoing infections were related to his prostate condition. A June 2015 VA urology note, in particular, discusses the history of the Veteran's urologic symptoms at length and suggests several possible causes of those symptoms, some of which contradict the findings of the October 2020 clinician. As the medical evidence currently of record lacks clarity and consistency, an additional medical opinion is needed. The matter is REMANDED for the following action: Send the claims file to a urologist or other appropriate clinician for review. Following review of the claims file, the clinician is asked to respond to the following: (a) Does the Veteran have an additional disability, to include right orchiectomy and scrotal resection, prostate resection, and/or pseudomonas as a result of the March 2014 VA cystoscopy and prostate biopsy? Please explain why or why not, specifically considering and discussing the relevant evidence of record, to include but not limited to that outlined below. (b) For any additional disability identified, was the disability proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? Please explain why or why not, specifically considering and discussing the relevant evidence of record, to include but not limited to that outlined below. (c) For any additional disability identified, was the disability proximately caused by an event not reasonably foreseeable (i.e., was it the type of risk that would not have been disclosed in informed consent procedures)? Please explain why or why not, specifically considering and discussing the relevant evidence of record, to include but not limited to that outlined below. In responding to the foregoing questions, please provide a complete rationale for the conclusions reached, specifically considering and discussing, as appropriate, (1) the Veteran's history of urinary tract infections and prostate symptomatology predating the March 2014 procedures; (2) the initial finding of pseudomonas infection following the March 2014 procedures; (3) the April 11, 2014 and June 10, 2015 VA urology treatment notes authored by Dr. D.W., describing the course of the Veteran's urologic symptoms before and after the March 2014 procedures and discussing potential causes; (4) the articles submitted by the Veteran discussing contaminated medical equipment; and (5) the October 2020 medical opinion, to include the medical journal article cited therein. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.