Citation NR: 9735546	
Decision Date: 10/22/97		Archive Date: 10/28/97
DOCKET NO.  95-33 094	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, 
Maryland


THE ISSUES

1.  Entitlement to compensation benefits under 38 U.S.C.A. 
§ 1151 (West 1991) for bladder disability due to prostate 
surgery.

2.  Entitlement to compensation benefits under 38 U.S.C.A. 
§ 1151 (West 1991) for prostatectomy, claimed as prostate 
disability due to prostate surgery.

3.  Entitlement to compensation benefits under 38 U.S.C.A. 
§ 1151 (West 1991) for colon disability due to prostate 
surgery.



REPRESENTATION

Appellant represented by:	The American Legion



WITNESSES AT HEARING ON APPEAL

Appellant and two witnesses


ATTORNEY FOR THE BOARD

Michael P. Vander Meer, Counsel



INTRODUCTION

The veteran served on active duty from December 1941 to 
November 1943.  

This case is before the Board of Veterans' Appeals (Board) on 
appeal from a June 1995 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Baltimore, 
Maryland.  

The appeal was docketed at the Board in December 1996.  A 
hearing was held before the undersigned Member of the Board 
in June 1997.  

The first two issues listed on the title page will be 
addressed in the decision below.  The final issue listed on 
the title page will be addressed in a remand appearing at the 
end of the decision.  


CONTENTIONS OF APPELLANT ON APPEAL

Concerning his claim for compensation benefits under 
38 U.S.C.A. § 1151 for bladder disability due to prostate 
surgery, the veteran acknowledges that he signed a consent 
form prior to undergoing a prostatectomy at a VA facility in 
December 1991.  As to such procedure, he acknowledges that he 
was advised that urinary incontinence was a related surgical 
risk.  He asserts, however, that it was his understanding 
that any incontinence occasioned thereby would be merely 
temporary and that, in fact, he presently continues to 
experience urinary incontinence which results in the soiling 
of multiple diapers, which he is obliged to wear, per day.  
He therefore feels that 38 U.S.C.A. § 1151 compensation 
benefits for bladder disability due to prostate surgery are 
warranted.  

Regarding his claim for 38 U.S.C.A. § 1151 compensation 
benefits for prostatectomy, claimed as prostate disability 
due to prostate surgery, he asserts that there was no reason 
to remove his prostate gland, in surgery performed at a VA 
facility in December 1991, inasmuch as such gland was not 
cancerous.  


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered 
all of the evidence and material of record in the veteran's 
claims file.  Based on its review of the relevant evidence in 
this matter, and for the following reasons and bases, it is 
the decision of the Board that the evidence supports an award 
of compensation benefits under 38 U.S.C.A. § 1151 for bladder 
disability due to prostate surgery; and that the veteran has 
not submitted evidence of a well grounded claim for 
compensation benefits under 38 U.S.C.A. § 1151 for 
prostatectomy, claimed as prostate disability due to prostate 
surgery.  


FINDINGS OF FACT

1.  Urinary incontinence is traceable to a December 1991 
prostatectomy performed by VA, and is not a necessary 
consequence thereof.  

2.  The claim for compensation benefits under 38 U.S.C.A. 
§ 1151 for prostatectomy, claimed as prostate disability due 
to prostate surgery, is not plausible. 



CONCLUSIONS OF LAW

1.  The criteria for compensation benefits under 38 U.S.C.A. 
§ 1155 for bladder disability due to prostate surgery have 
been met.  38 U.S.C.A. §§ 1151, 5107 (West 1991); 38 C.F.R. 
§ 3.358 (1996).  

2.  The claim for compensation benefits under 38 U.S.C.A. 
§ 1155 for prostatectomy, claimed as prostate disability due 
to prostate surgery, is not well grounded.  38 U.S.C.A. 
§ 5107(a) (West 1991).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  38 U.S.C.A. § 1151, Bladder Disability

The Board finds that the first issue listed on the title page 
is well grounded within the meaning of 38 U.S.C.A. § 5107(a).  
That is, the Board finds that this claim is plausible.  The 
Board is also satisfied that all relevant facts have been 
properly developed, and that no further assistance to the 
veteran is required to comply with 38 U.S.C.A. § 5107(a).

Under the law, in the context of this issue on appeal, where 
it is determined that there is additional disability 
resulting from VA surgical treatment, compensation will be 
payable for such additional disability.  38 U.S.C.A. § 1151; 
38 C.F.R. § 3.358.  

The record reflects that, after signing a consent form in 
December 1991 in which he was advised that urinary 
incontinence was a risk occasioned by undergoing a 
prostatectomy, such surgical procedure was performed the same 
month at a VA facility.  When seen for followup care by VA in 
July 1992, the veteran was noted to experience incontinence 
in the aftermath of undergoing the December 1991 
prostatectomy.  More recently, when examined by VA in 
February 1995, the veteran was noted to experience urinary 
incontinence, in response to which he was obliged to 
repeatedly change diapers.  Most recently, the veteran 
submitted a February 1997 statement from J. H. Chircus, M.D., 
which physician indicated that he had been caring for the 
veteran as a urologist since August 1995.  Dr. Chircus 
asserted that, as "a well known complication of" the above-
addressed December 1991 prostatectomy performed by VA, the 
veteran "had total intrinsic urinary sphincter deficiency" 
and added "that there [was] a direct causal relationship 
between the [veteran's] urinary stress incontinence and the 
radical prostatectomy."

In considering the veteran's claim for compensation benefits 
under 38 U.S.C.A. § 1151 for bladder disability due to 
prostate surgery, the Board would point out that, 
notwithstanding the above-stated provisions codified at 
38 U.S.C.A. § 3.358(a), pertinent VA compensation is not 
authorized "for the necessary consequences of" surgical 
treatment accomplished "with the express or implied consent 
of the veteran."  See 38 C.F.R. § 3.358(c)(3).  In applying 
the latter quoted criteria to this aspect of the appeal, it 
would appear to the Board that the urinary incontinence of 
which the veteran was advised as a possible complication of 
the December 1991 prostatectomy must be seen as a risk of 
such surgery as opposed to being a 'necessary consequence' 
thereof.  To be sure, the Board is aware of a report 
pertaining to a cytoscope procedure administered the veteran 
by a VA physician in March 1995, which report includes an 
assessment to the effect that the veteran's urinary 
incontinence may be of neurogenic origin.  Nevertheless, the 
Board notes that the report further reflects that the 
veteran's urinary sphincter apparently did not fully close on 
coaptation.  On assessing the foregoing consideration in 
conjunction with the above-addressed February 1997 statement 
from Dr. Chircus, the Board is persuaded that the veteran's 
present urinary incontinence is representative of additional 
disability, within the meaning of 38 C.F.R. § 3.358(a), 
traceable to the December 1991 prostatectomy.  Accordingly, 
compensation benefits under 38 U.S.C.A. § 1151 for bladder 
disability due to prostate surgery are in order.  38 U.S.C.A. 
§§ 1151, 5107; 38 C.F.R. § 3.358.  


II.  38 U.S.C.A. § 1151, Prostate Disability

The threshold question to be answered concerning the 
veteran's claim for the benefit specified in issue II is 
whether he has presented a well grounded claim, that is, one 
which is plausible and meritorious on its own or capable of 
substantiation.  38 U.S.C.A. § 5107(a); see Tirpak v. 
Derwinski, 2 Vet.App. 609 (1992).  If a claimant does not 
submit evidence of a well grounded claim, VA is under no duty 
to assist him in developing facts pertinent to such claim.  
Murphy v. Derwinski, 1 Vet.App. 78 (1990).  For the reasons 
set forth below, the Board finds that the veteran has not met 
his burden of submitting evidence to support a belief by a 
reasonable individual that his claim for the benefit 
specified in issue II is well grounded.

Regarding his claim for 38 U.S.C.A. § 1151 compensation 
benefits for prostatectomy, claimed as prostate disability 
due to prostate surgery, the veteran asserts that there was 
no reason to remove his prostate gland in surgery performed 
at a VA facility in December 1991, inasmuch as such gland was 
not cancerous.  In this regard, however, the report 
pertaining to the above-addressed December 1991 prostatectomy 
(radical perineal) performed at a VA facility at that time 
was specifically accomplished pursuant to a prostate biopsy 
which revealed cancer.  Given such observation, and inasmuch 
as the removal of the veteran's prostate gland was the 
specific purpose of the procedure to which the veteran gave 
his approval on the above-addressed December 1991 consent 
form, such removed gland was a 'necessary consequence' of the 
surgery, which consideration precludes any entitlement to 
38 U.S.C.A. § 1151 compensation benefits predicated on such 
surgery.  See 38 C.F.R. § 3.358(c)(3).  Accordingly, a 
plausible claim for compensation benefits under 38 U.S.C.A. 
§ 1151 for prostatectomy, claimed as prostate disability due 
to prostate surgery, is not presented.  Therefore, such claim 
is not well grounded.  38 U.S.C.A. § 5107(a).  

Finally, although the Board has considered and disposed of 
the foregoing claim on a ground different from that of the 
RO, the veteran has not been prejudiced by the Board's 
decision.  This is because, in assuming that such claim was 
well grounded, the RO accorded the veteran greater 
consideration than this claim in fact warranted under the 
circumstances.  Bernard v. Brown, 4 Vet.App. 384, 392-94 
(1993).  To remand this case to the RO for consideration of 
the issue of whether this claim is well grounded would be 
pointless and, in light of the law cited above, would not 
result in a determination favorable to the veteran.  VA 
O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747 (1992).  

In addition, as pertinent to the veteran’s claim for of 
38 U.S.C.A. § 1151 compensation benefits for prostatectomy, 
claimed as prostate disability due to prostate surgery, the 
Board is of the opinion that its discussion above bearing on 
such issue is sufficient to inform the veteran of the 
elements necessary to complete his application for such 
benefit.  See Robinette v. Brown,  8 Vet.App. 69 (1995).


ORDER

Compensation benefits under 38 U.S.C.A. § 1151 for bladder 
disability due to prostate surgery are granted.  

Evidence of a well grounded claim not having been submitted, 
the appeal for compensation benefits under 38 U.S.C.A. § 1151 
for prostatectomy, claimed as prostate disability due to 
prostate surgery, is denied.  


REMAND

Regarding his claim for compensation benefits under 
38 U.S.C.A. § 1151 for colon disability due to prostate 
surgery, the veteran asserts that he experiences constipation 
as a direct result of a prostatectomy performed at a VA 
facility in December 1991.  Specifically, the veteran alleges 
that, the day after the surgery, a VA physician informed him 
that his bowel had been bruised in the course of performing 
the prostatectomy.  The report pertaining to the veteran's 
examination by VA in February 1995, reflects an assessment of 
mild chronic constipation secondary to the December 1991 VA 
prostatectomy.  However, the Board notes that the report of 
the February 1995 VA examination does not reflect that the VA 
examiner reviewed the report pertaining to the December 1991 
prostatectomy, which latter report is silent for any 
reference to trauma being sustained by the bowel during the 
surgery.  Further, the report pertaining to a pelvic lymph 
node dissection accomplished two weeks earlier in December 
1991 disclaims any appearance of any injury to the bowel.  
Given these observations bearing on each of the foregoing 
surgical procedures performed by VA in December 1991, the 
Board is of the opinion that a review of the record (with 
pertinent VA examination, if needed) by an appropriate VA 
specialist for the purpose of offering an opinion bearing on 
this aspect of the appeal should be accomplished before a 
related appellate adjudication is rendered. 

Accordingly, the case is REMANDED for the following:


1.  The RO should contact the veteran and 
request him to identify the names, 
addresses, and approximate dates of 
treatment relating to any VA or non-VA 
health care provider(s) who may possess 
clinical evidence, not currently of 
record, which he feels would be helpful 
to the third issue listed on the title 
page.  Thereafter, in light of the 
response received and after obtaining any 
necessary authorization, the RO should 
take appropriate action to obtain copies 
of any clinical records indicated.  


2.  Thereafter, the RO should arrange to 
have the claims folder reviewed by a VA 
surgeon.  After reviewing the record, to 
specifically include the report 
pertaining to a pelvic lymph node 
dissection performed by VA on December 2, 
1991, as well as the report pertaining to 
a prostatectomy performed by VA on 
December 16, 1991, the surgeon should 
offer an opinion as to whether it is at 
least as likely as not that the veteran's 
conceded chronic constipation comprises 
additional disability traceable to either 
of the foregoing surgeries accomplished 
by VA in December 1991, and, if so, 
whether the constipation is a necessary 
consequence of the surgery(ies).  In the 
event the reviewing VA surgeon desires 
that the veteran undergo pertinent VA 
examination before the examiner renders 
the above requested opinion, the RO 
should arrange to have the veteran 
undergo any examination the reviewing VA 
surgeon requests.  The rationale for all 
opinions expressed by the reviewing VA 
surgeon should be fully explained.  


3.  The RO should then review the report 
pertaining to the review of the veteran's 
claims folder performed in response to 
the previous numerical directive to 
ascertain whether such review is in 
compliance with the Board's instructions.  


4.  Then, after undertaking any 
development deemed necessary in addition 
to that specified above, the RO should 
readjudicate the third issue listed on 
the title page.  


5.  If the remaining benefit sought on 
appeal is not granted to the veteran's 
satisfaction, or if he expresses 
disagreement pertaining to any other 
matter, both he and his representative 
should be provided with an appropriate 
Supplemental Statement of the Case.  The 
veteran should be provided appropriate 
notice of the requirements to perfect an 
appeal with respect to any issue(s) 
addressed therein which does not appear 
on the title page of this decision.  

Thereafter, the case should be returned to the Board for 
further appellate consideration, if otherwise in order.  In 
taking this action, the Board implies no conclusion, either 
legal or factual, as to the ultimate outcome warranted.  No 
action is required of the veteran unless he is otherwise 
notified.  


		
	F. JUDGE FLOWERS
	Member, Board of Veterans' Appeals

38 U.S.C.A. §  7102 (West Supp. 1996) permits a proceeding 
instituted before the Board to be assigned to an individual 
member of the Board for a determination.  This proceeding has 
been assigned to an individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1996), a decision of the Board of Veterans' 
Appeals granting less than the complete benefit, or benefits, 
sought on appeal is appealable to the United States Court of 
Veterans Appeals within 120 days from the date of mailing of 
notice of the decision, provided that a Notice of 
Disagreement concerning an issue which was before the Board 
was filed with the agency of original jurisdiction on or 
after November 18, 1988.  Veterans' Judicial Review Act, Pub. 
L. No. 100-687, § 402 (1988).  The date that appears on the 
face of this decision constitutes the date of mailing and the 
copy of this decision that you have received is your notice 
of the action taken on your appeal by the Board of Veterans' 
Appeals.  Appellate rights do not attach to those issues 
addressed in the remand portion of the Board's decision, 
because a remand is in the nature of a preliminary order and 
does not constitute a decision of the Board on the merits of 
your appeal.  38 C.F.R. § 20.1100(b) (1996).

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