Citation Nr: A25035781 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 230425-342062 DATE: April 17, 2025 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability claimed as arising from a December 2012 surgery, claimed as unauthorized surgery, small intestinal submucosa (SIS) graft, with uncontrolled bleeding, E. coli, and infection (also claimed as urethra injury, prostate gland injury, penile deformity, pain, cellulitis, abscess, trauma, and non-healing surgical wound) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 2001 to August 2002. The rating decision on appeal was issued in March 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to compensation under 38 U.S.C. § 1151 for additional disability claimed as arising from a December 2012, surgery, claimed as unauthorized surgery, small intestinal submucosa (SIS) graft, with uncontrolled bleeding, E. coli, and infection (also claimed as urethra injury, prostate gland injury, penile deformity, pain, cellulitis, abscess, trauma, and non-healing surgical wound), any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). 38 U.S.C. § 1151 claim The Veteran asserts that he has suffered from an additional disability arising from a December 2012 surgery performed at a VA medical center. Under the AMA, the Board may only remand an issue to correct any pre-decisional duty to assist errors it identifies if correction of such error would have a reasonable possibility of aiding in substantiating a claim. 38 C.F.R. § 20.802(a). Once VA undertakes the effort to provide an examination or medical opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). On December 10, 2012, the Veteran presented for a pre-operative appointment. The physician noted the Veteran presented to arrange reconstruction of his left corporal body with a graft. The Veteran asserted that he began developing pain and difficulty inflating his inflatable penile prosthesis and had it removed in April 2012 upon finding that it was grossly infected. The physician noted that the Veteran's left corporal space was completely obliterated and there was severe scarring of the right proximal corpora. The physician addressed informed consent, and a copy of the signed informed consent is of record. The informed consent form notes the Veteran consented for a left corporal body reconstruction using a SIS graft. The Veteran underwent surgery on December 14, 2012, for a removal of a semirigid penile prosthesis, incision and dilation of the left corpora cavernosa, phalloplasty, and insertion of an inflatable penile prosthesis. See December 2012 VA Treatment Records. On December 15, 2012, the Veteran underwent a radiological examination for retrograde urethrogram for gross hematuria. The examination showed contained disruption of the mid bulbar urethra probably posteriorly. There was no stricture evidence. The filling defect in the bulbar urethra was likely a blood clot given the evidence of gross hematuria. In a December 18, 2012, telephone encounter, the Veteran complained of pain and swelling and asserted that he was not treated fairly before the surgery. See December 2012 VA Treatment Records. The Veteran asserted that he did not fully understand what was being done and that some of the procedures were not explained to him. On December 26, 2012, the Veteran presented with reports of fever and chills beginning within the previous twenty-four hours with bleeding and increased tenderness from a scrotal wound since the previous evening. See December 2012 Medical Treatment Records. There was noted to be slow bleeding from meatus since the December 14, 2012, surgery. The Veteran was diagnosed upon admittance with an infected inflatable penile prosthesis. In January 2013, the Veteran was seen after his December 26, 2012, surgery to remove the infected penile prosthesis. The treating physician noted the December 14, 2012, surgery was complicated by urethral bleeding and a bulbar injury was found on subsequent imaging. The Veteran suffered from an E. coli infection of his prosthesis which required transfer to the University of Alabama and explant extraction. In October 2013, the Veteran underwent a penile sonogram to evaluate the integrity of the penis after the failed implant surgery. The impression was an intact, mildly heterogeneous corpora cavernosa with echogenic foci on the right that were likely related to prior trauma and/or surgery, arterial flow was demonstrated in both cavernosal arteries, left greater than right, and a probable left epididymal cyst. The Veteran asserted that he did not give fully informed consent for the December 14, 2012, procedure. See April 2019 Correspondence. Specifically, the Veteran asserted that there was consent for "left corporal body and skin graft" by the attending surgeon and there was no reason for removing the semi-Rod malleable. The Veteran asserted that there was no discussion of removing the malleable rod or inserting an inflatable penile prosthesis prior to undergoing the procedure. Id. In a July 2019 Claim for Payment of Cost of Unauthorized Medical Service, the Veteran asserted that the physician unnecessarily changed the SIS graft, unnecessarily removed a semi-rigid rod, and unnecessarily inserted an inflatable pump without the consent or any discussion with the Veteran. The Veteran asserted that he was only informed of building up the base of the left corporal with pig intestine or similar VAMC graft material. The Veteran contended that all he needed was a skin graft and that was all he consented to having completed. In December 2022, the Board remanded this claim for an addendum opinion, as the existing medical opinions of record, particularly a February 2022 VA examination, did not adequately explain whether the Veteran's listed voiding dysfunction, limitations to prolonged walking and sitting, limitations to lifting, a history of urinary tract infections, and scarring were additional disability proximately caused by the December 2012 surgery. In a February 2023 VA medical opinion, the VA examiner noted that review of VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case. It was less likely than not the claimed condition was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The VA examiner noted that review of the medical record showed the Veteran sustained a gunshot wound to his genitalia resulting in significant trauma and tissue loss. The VA examiner noted that with an injury that severe, bleeding, infection, urethra injury, prostate gland injury, penile deformity, pain, cellulitis, abscess, trauma, and non-healing surgical wound cannot be avoided as the direct cause of these is the severe trauma and tissue loss from the gunshot wound. The VA examiner reported the best medicine can offer is management of the injuries. The VA examiner noted that informed consent was of record and signed by the Veteran. The Board finds the February 2023 VA medical opinion to be inadequate as the VA examiner did not address the Veteran's assertions and did not address the December 14, 2012, surgery or subsequent December 26, 2012, surgery to remove the infected inflatable penile prosthesis. Additionally, the VA examiner did not address whether the Veteran gave full informed consent for the December 14, 2012, procedure. The February 2023 VA medical opinion reflects an incomplete and inaccurate medical history, and the accompanying medical opinion does not address the pertinent issue in this case. Accordingly, because the VA examinations and opinions of record are inadequate, remand is required to afford the Veteran a new VA examination and opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). The matters are REMANDED for the following action: The AOJ should schedule the Veteran for an appropriate VA examination to determine whether the Veteran has additional disability claimed as arising from a December 2012, surgery, claimed as unauthorized surgery, small intestinal submucosa (SIS) graft, with uncontrolled bleeding, E. coli, and infection (also claimed as urethra injury, prostate gland injury, penile deformity, pain, cellulitis, abscess, trauma, and non-healing surgical wound) and whether such disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or, whether such disability was the result of an event not reasonably foreseeable. The claims file, including a complete copy of this remand, must be provided for the examiner's review of the relevant history, including especially the treatment in question as well as the consent forms, if available. The examination report must reflect that such a review was undertaken. All indicated tests and studies deemed necessary by the examiner should be performed and all clinical findings reported in detail. After eliciting a full history from the Veteran and documenting the Veteran's reported history in the examination report, conducting a complete review of the claims file with citation to and description of the relevant medical documentation, performing a clinical evaluation of the Veteran's claimed additional disability, and completing any clinically indicated diagnostic testing, the examiner should render an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran incurred claimed as arising from a December 2012, surgery, claimed as unauthorized surgery, small intestinal submucosa (SIS) graft, with uncontrolled bleeding, E. coli, and infection (also claimed as urethra injury, prostate gland injury, penile deformity, pain, cellulitis, abscess, trauma, and non-healing surgical wound). The examiner must specifically address the following: 1. Whether the Veteran has additional disability manifested as unauthorized surgery, small intestinal submucosa (SIS) graft, with uncontrolled bleeding, E. coli, and infection (also claimed as urethra injury, prostate gland injury, penile deformity, pain, cellulitis, abscess, trauma, and non-healing surgical wound) that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. 2. In so doing, the examiner should address the nature and extent of the diagnostic testing, evaluation, and surgical procedure(s) performed to treat the Veteran's diagnosed erectile dysfunction and subsequent removal of semirigid penile prosthesis, incision and dilation of left corpora cavernosa, phalloplasty, and insertion of inflatable penile prosthesis by VA facilities from the Veteran's first complaint of symptoms to the present. Additionally, the VA examiner should address the following: * the December 14, 2012, procedure performed at the VA Medical Center in Birmingham, Alabama; * any complications that developed as a result of the December 14, 2012, procedure; * any additional procedures performed by VA to address any post-operative complications of the December 14, 2012, procedure; * any procedures and/or treatment performed by non-VA clinicians to address any complications of the December 14, 2012, procedure; * the medical treatment records, discussed in the body of the remand above. If it is at least as likely as not that the Veteran incurred additional disability, the examiner should also opine, in regard to each disability identified, as to whether the proximate cause of such disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or (b) an event not reasonably foreseeable. In determining whether any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA, the examiner should specifically consider whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner is advised that, whether the proximate (i.e., direct) cause of a Veteran's additional disability was an event not reasonably foreseeable 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. The examiner is also asked to consider and address the Veteran's contention that he was not sufficiently informed of the potential risks of the surgery, including the possibility of an implantation of an inflatable penile prosthesis. It is most essential the examiner provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions, and with specific reference to the evidence of record where appropriate. If an opinion cannot be provided, the examiner should so state and explain why this is so. In addition, the examiner should state whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge, there are multiple possible etiologies, with none more prevalent than another, or whatever may be the case. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Glass, 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.