Citation Nr: 21067273 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-58 694 DATE: November 3, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a bladder disability, claimed as a bladder injury, contended to be due to an April 14, 2014, hysterectomy at a VA medical facility, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to December 1984 and from May 2001 to November 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously remanded this claim in May 2021 for additional development following a July 2020 hearing. Unfortunately, as will be discussed in more detail below, remand is again necessary to ensure substantial compliance with the May 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to compensation under 38 U.S.C. § 1151 for a bladder disability, claimed as a bladder injury, contended to be due to an April 14, 2014, hysterectomy at a VA medical facility, is remanded. The Veteran contends she suffers from incontinence as a result of her April 2014 hysterectomy at a VA medical facility. The Board finds the evidence of record is insufficient to resolve her claim and remand is necessary to ensure substantial compliance with the Board's May 2021 directives. As previously found by the Board, the record was unclear whether the Veteran has an additional disability under 38 C.F.R. § 3.361 in light of conflicting evidence of the Veteran's incontinence prior to the April 2014 hysterectomy. While the Veteran was afforded a June 2015 VA examination, the Board found that the examiner did not reconcile first whether the Veteran had an additional disability following the April 2014 hysterectomy in light of the treatment records from 2011, 2012, 2013, and 2014 reflecting complaints of and treatment for incontinence prior to the hysterectomy. Accordingly, another VA examination occurred in May 2021. Instead of addressing whether the Veteran has an additional disability, however, the May 2021 examiner merely opined the Veteran was diagnosed with urinary incontinence per the VAMC Urinary Tract Disability Benefits Questionnaire in June 2015 and the examiner agrees with the VAMC medical opinion and rationale from June 2015 as it is consistent with the objective medical record and evidence. The May 2021 examiner then copied the opinion and rationale from June 2015. The issue is, the Board previously determined that the June 2015 opinion required further clarification prompting the May 2021 remand. The May 2021 examiner, however, failed address the remand directives and did not provide the necessary clarification to resolve the Veteran's claim, including whether the Veteran has an additional disability as defined under 38 C.F.R. § 3.361. As such, remand is unfortunately again necessary to ensure substantial compliance with the remand directives from the Board's May 2021 decision. The matters are REMANDED for the following action: 1. Return the entire claims file and this remand to the May 2021 VA examination, if available, or to another urologist for review. The entire claims file and this remand should be made available to the urologist for review. The examiner should render an opinion, including rationale, addressing the following: (a.) Whether the Veteran has an additional disability after the April 2014 hysterectomy; and In so opining, the examiner is directed to compare the Veteran's condition before and after the VA medical care in question. Additionally, the examiner is directed to address the Veteran's treatment records and testimony of incontinence prior to April 2014 including in 2011, 2012, 2013, and early 2014 as well as the Veteran's statements of worsened incontinence following the April 2014 procedure. The examiner should complete any additional testing deemed necessary to determine whether the Veteran has an additional disability for VA purposes, the results of which should be included in the opinion. If there is no additional disability found, then the examiner need not move on to (b.) below but should provide a thorough rationale for concluding there is no additional disability following the April 2014 procedure. (b.) If, and only if, the Veteran has an additional disability following the April 2014 hysterectomy, then the examiner must also answer: whether the additional disability is at least as likely as not (50 percent or greater probability) a result of EITHER: (i) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or, alternatively, (ii) an event not reasonably foreseeable. The examiner should review the surgical records as well as any consent forms of record in rendering the opinions requested. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.