Citation Nr: 1217149 Decision Date: 05/11/12 Archive Date: 05/24/12 DOCKET NO. 05-40 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for transient ischemic attacks (TIAs). 2. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for urinary incontinence. 3. Entitlement to an initial rating in excess of 10 percent for left lower extremity inguinal nerve neuropathy. 4. Entitlement to a rating in excess of 10 percent for postoperative residuals of a left inguinal hernia. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1964 to March 1966. These matters come before the Board of Veterans' Appeals (Board) on an appeal from a February 2005 rating decision that was issued by the Regional Office (RO) in Philadelphia, Pennsylvania. The Board notes that the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since July 2005. The issues of entitlement to compensation pursuant to 38 U.S.C. § 1151 for urinary incontinence and TIAs are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left lower extremity inguinal nerve neuropathy does not manifest in soft-tissue sarcoma of neurogenic origin of the ilioinguinal nerve. 2. Prior to December 3, 2009, the Veteran's left side inguinal hernia manifested in small recurrent postoperative hernias which were readily reducible. 3. From December 3, 2009, the Veteran's left side inguinal hernia manifested in small recurrent postoperative hernias which were not readily reducible. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left lower extremity inguinal nerve neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8530. (2011). 2. Prior to December 3, 2009, the criteria for a rating in excess of 10 percent for a left inguinal hernia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7338 (2011). 3. From December 3, 2009, the criteria for a rating of 30 percent, but no higher, for a left inguinal hernia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & West Supp. 2011); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7338 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased initial rating claim for left lower extremity inguinal nerve neuropathy arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under the VCAA for this issue. In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). Here, the Veteran was sent a letter in November 2003 that provided information as to what evidence was required to substantiate the claim for an increased rating for a left side inguinal hernia and of the division of responsibilities between VA and a claimant in developing an appeal. An October 2008 letter also explained what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in the October 2008 communication, and the claim was thereafter readjudicated in March 2012, most recently. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2011) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In this regard, where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2011). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initial Increased Rating, Inguinal Nerve Neuropathy The Veteran has been rated as 10 percent disabled under Diagnostic Code 8530 for his inguinal nerve neuropathy. 38 C.F.R. § 4.123 provides that neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 provides that neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. A Note to 38 C.F.R. § 4.124a states that when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. A 10 percent rating is warranted for severe to complete paralysis of the ilioinguinal nerve. 38 C.F.R. § 4.124a , Diagnostic Code 8530. A 100 percent disability rating is warranted for soft-tissue sarcoma of neurogenic origin of the ilioinguinal nerve. 38 C.F.R. § 4.124a , Diagnostic Code 8540. A July 2003 private treatment record indicates that the Veteran had an EMG showing moderate to severe polyneuropathy in his lower extremities, probably secondary to diabetes. The Veteran was afforded a VA examination in December 2003. He complained of pain in his left groin and numbness in his left leg, which caused some degree of pain. VA treatment records indicate complaints of left groin pain. A November 2006 private treatment record reports that the Veteran's pain is due to his abdominal obesity pressing on his left groin. A July 2007 VA treatment note indicates that the Veteran had no lower extremity edema. A July 2008 VA treatment note indicates that the Veteran had no muscle wasting or fasciculation. Muscle strength was 5/5, with the exception of in his right hand. An additional treatment note that month indicates that the Veteran's artificial urinary sphincter (which was placed in 2004) had ridden up into the left inguinal canal. The artificial urinary sphincter was removed in August 2008. A December 2008 VA treatment note indicates that the Veteran's neurological sensation was intact to light touch. VA treatment records throughout the relevant period contain complaints concerning pain in the left groin area, with periodic left ilioinguinal nerve blocks. A February 2009 VA treatment record indicates that the Veteran's left groin pain had improved after he had the artificial urinary sphincter removed, until he fell down the church steps, injuring his left hip. He was subsequently diagnosed with post-traumatic bursitis. An April 2009 EMG private test report indicates severe distal peripheral polyneuropathy secondary to diabetes mellitus. A September 2009 VA treatment note indicates strength in the left leg at 3/5 with weakness and pain. The Veteran was afforded an additional VA examination in September 2009. He reported exquisite pain from the ilioinguinal neuropathy with difficulty walking 5 to 7 steps before the pain resumed. The diagnosis was severe left inguinal nerve neuropathy. Taking all of the evidence of record into account, the Board finds that the preponderance of the evidence is against a finding that the Veteran's inguinal nerve neuropathy warrants a disability rating in excess of 10 percent. In this regard, he is already in receipt of the maximum schedular rating underl Diagnostic Code 8530. Moreover, there is no evidence of record that indicates a diagnosis of soft-tissue sarcoma of neurogenic origin of the ilioinguinal nerve such as to enable a higher evaluation under Diagnostic Code 8540. The Board has considered evaluation under alternate diagnostic codes. However, in this case, the Veteran has been specifically service-connected for neuropathy of the ilioinguinal nerve and Diagnostic Codes 8530-8540 are the only code sections that specifically apply to that nerve. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the Veteran's inguinal nerve neuropathy warranted a rating higher than 10 percent. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim because the preponderance of the evidence is against the claim. Increased Rating, Left Inguinal Hernia The Veteran's left inguinal hernia is rated under Diagnostic Code 7338. The relevant criteria provide a 0 percent disability rating for a hernia that is small, reducible, or without true hernia protrusion, or remediable hernia. A 10 percent disability rating is provided for recurrent postoperative hernias that are readily reducible and well supported by truss or belt. A 30 percent disability rating is provided for small recurrent postoperative hernias or unoperated irremediable hernias that are not well supported by truss, or not readily reducible. A 60 percent disability rating is provided for large, recurrent postoperative hernias that are not well supported under ordinary conditions and not readily reducible when considered inoperable. 38 C.F.R. § 4.114 , Diagnostic Code 7338 (2011). Turning to the evidence of record, a July 2003 VA treatment note indicates no palpable hernia, though the Veteran complained of groin pain. The Veteran was afforded a VA examination in December 2003. Examination of the left side revealed a large left external inguinal ring without hernia evident. A May 2005 private treatment record indicates complaints of pain, with a lump over the left side inguinal ring that would come and go spontaneously. The lump sometimes became enlarged with walking. A June 2005 private treatment note indicates that the Veteran had a repair of a recurrent incarcerated left inguinal hernia with mesh plug. He indicated during VA treatment in January 2007 that he was dancing and had a strong pain in his groin, which led to the 2005 hernia repair. After the hernia repair, he was pain-free for two months when he began to feel pain due to a lump the size of a pea just above his left testicle. The pain had increased since that time. A March 2007 VA treatment note reflects a palpable nodule in the left groin. However, an additional March 2007 treatment record indicates that the Veteran had no hernia recurrence. In a January 2008 VA treatment note, the Veteran reported that his hernia was "coming out." However, on objective examination, a left inguinal hernia could not be found by the provider. Upon VA treatment in March 2008, there was no evidence of an inguinal hernia. The Veteran was afforded an additional VA examination in September 2009. He was diagnosed with status-post multiple left inguinal hernia repairs without recurrence. A December 3, 2009, treatment note indicates a small inguinal hernia on the left side. In December 2009, the Veteran was advised that a hernia repair was not recommended due to his extensive operative history and large pannus. A March 2010 VA treatment note indicates that the Veteran had recurrent left inguinal hernias. A June 2010 VA provider could not find any evidence of recurrent left inguinal hernia either by exam or by MRI; therefore, he could not offer the Veteran the hernia repair as requested. In a September 2010 VA treatment note, the Veteran attributed chronic groin pain to his hernia. The provider noted a recent MRI with no hernias or soft tissue defects. The Veteran's left inguinal region was tender to palpitation. The examiner's impression was that an inguinal hernia was unlikely, given the Veteran's history of chronic pain despite no palpable hernia and normal imaging results. The Veteran had an additional VA examination in October 2011. He indicated that he stopped working due to PTSD in 1998, though not due to any type of hernia problems. Objectively, there was no inguinal hernia present and the Veteran denied wearing any type of support devices. Additionally, there was additionally no pain elicited with palpitation of either the right or left groin or with palpitation of the left inguinal hernia repair site. The Veteran was diagnosed with status-post multiple left inguinal hernia repairs without recurrence. A December 2011 addendum indicated that there was no evidence of a left inguinal hernia either in the relevant records or on examination. Prior to December 3, 2009, the Board finds that the Veteran's left side inguinal hernia did not warrant a disability rating higher than 10 percent. In this regard, the Board notes that there is no evidence that the Veteran had small recurrent postoperative hernias or unoperated irremediable hernias that were not well supported by truss, or not readily reducible. In this regard, the Board notes that in June 2005, the Veteran's hernia was reduced. Subsequent to this and prior to December 2009, there is no objective evidence that the hernia had recurred. Adffording the Veteran the benefit of the doubt, the Board finds that the Veteran's left inguinal hernia disability warrants a 30 percent rating from December 3, 2009. In this regard, a December 3, 2009, VA treatment note indicates a small hernia that was not reducible, as the provider advised against subsequent hernia operations. However, a 60 percent disability rating is not warranted at any time during the rating period on appeal, as there is no evidence of large, recurrent postoperative hernias. In fact, MRIs subsequent to the December 2009 treatment note found no evidence of hernia. Thus, the Board finds that the Veteran's left inguinal hernia disability warrants a 30 percent rating from December 3, 2009. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to the claim because the preponderance of the evidence is against the claim. Extraschedular Consideration The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2011). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to an initial rating in excess of 10 percent for left lower extremity inguinal nerve neuropathy is denied. Prior to December 3, 2009, entitlement to a rating in excess of 10 percent for post-operative residuals of a left inguinal hernia is denied. From December 3, 2009, entitlement to a 30 percent disability rating for a left inguinal hernia is granted, subject to the regulations applicable to the payment of monetary benefits. REMAND A review of the claims file shows that additional development is required prior to the Board's adjudication of the Veteran's claim. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in a veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2011). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1). Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim 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 that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2). Pursuant to the language of the aforementioned law and regulation, section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment; and (3) medical evidence of a nexus between that asserted injury or disease and the current disability. The Board notes that the Veteran argues that his TIAs are due to being prescribed Oxybutyin as treatment for prostate problems and surgery at the Wilmington VA Medical Center (VAMC). He indicates in a September 2003 claim that he suffered two TIAs as a result of the medication. VA and private treatment record indicate that the Veteran began having TIAs in approximately November 2003. A March 2004 private treatment note indicates the Veteran had similar symptoms in January 2003. A March 2007 private treatment record indicates that the Veteran had a TIA at that time. The Board additionally notes that an April 2010 treatment note indicates that the Veteran requested his Oxybutyin be reordered, as it helped with his urinary frequency. An August 2010 VA opinion is of record, indicating that the Veteran's TIAs were not caused by his PTSD. The Board notes that this opinion is not responsive to the questions posed in the July 2010 remand. Thus, the Board finds an additional VA opinion is required in this instance. The Veteran claims that he has urinary frequency due to his trans-urethral resection of the prostate (TURP) which was performed on September 26, 2003. A review of the Veteran's VA treatment records indicate that he complained of urinary frequency in July 2003 and August 2003. In July 2003, he was diagnosed with urogenic bladder with frequency. An August 2003 treatment note indicates that the Veteran carried a urinal in his car due to his urinary frequency. A medical opinion was obtained with respect to the Veteran's claimed urinary incontinence but the opinion was unclear. The physician who provided the opinion opined that the Veteran's symptoms were not caused by the TURP but were "unmasked" by the TURP. He did not explain what he meant by the Veteran's symptoms being "unmasked"; if the TURP surgery aggravated an underlying urological disorder this could potentially form a basis for 38 U.S.C. § 1151 liability, if the other criteria for that benefit were satisfied. Therefore, clarification was necessary in order to determined whether the "unmask[ing]" of the Veteran's symptoms refers to an aggravation of a preexisting problem. Additionally, private treatment records that were obtained subsequent to that opinion mentioned the possibility of damage to the urinary sphincter during the TURP surgery; the Veteran subsequently received an artificial sphincter. The possibility of such damage was not addressed in the original VA medical opinion. A January 2010 VA treatment record attributed the Veteran's urinary incontinence to his prior Cerebral Vascular Accident (CVA). The Veteran was afforded a VA examination in August 2010. Unfortunately, an addendum or additional VA medical opinion must be obtained prior to further adjudication by the Board. In this regard, the Board notes that the August 2010 VA examiner did not utilize the verbiage or standards as stated in the prior Board remand. He also did not comment on whether the Veteran had an increase in symptoms that was attributable to the TURP surgery. For these reasons, a new medical opinion must be obtained that clarifies whether the Veteran had an increase in symptoms that was attributable to the TURP surgery and, if so, whether this was due to either carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing such care or treatment or, alternatively, was not a reasonably foreseeable consequence of the care or treatment provided. The Board's July 2010 remand conferred on the Veteran the right to compliance with the remand orders, as a matter of law. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, as already explained herein, the Board's remand orders were not fully complied with. Thus, the AOJ is required to conduct the development requested by the Board in order for the Veteran's claim to be fully and fairly adjudicated. Ongoing medical records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request an addendum from the August 2010 examiner; or if he is not available, then an opinion should be provided by a different examiner. If an additional in-person examination is necessary according to the examiner, then such should be afforded the Veteran. The following require specific responses from the examiner: a) The examiner should explain whether there was an aggravation or increase in the Veteran's symptoms (specifically, his urinary incontinence) due to the TURP procedure. b) If this is the case, then the examiner should explain whether this was at least as likely as not due to either (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing such care or treatment or, (b) was not a reasonably foreseeable consequence of the care or treatment provided. The examiner should specifically address the private physician's opinion, set forth in an October 2004 treatment record, to the effect that the Veteran's urinary sphincter might have been damaged during the TURP. The medical provider should fully explain the rationale for his or her conclusions in his or her report. 2. A medical opinion should be obtained addressing whether the Veteran's TIAs were the result of care and treatment that was provided by VA, specifically due to the Veteran's medication of Oxybutyin. If so, the examiner should indicate whether the occurrence of the TIAs was at least as likely as not due to either (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in furnishing such care or treatment or, (b) was not a reasonably foreseeable consequence of the care or treatment provided. Additionally, if the Veteran's TIAs are determined to be due to the circumstances set forth in (a) or (b), then all residuals of the TIA's should be documented in the report. If an examination of the Veteran is deemed to be necessary by the medical provider who provides the requested opinion, then this should be accomplished. T he medical provider who provides the opinion must fully explain all of the conclusions that are set forth in his or her report. The claims file must be reviewed in association with this request. 3. After completion of the above development, the Veteran's claims should be readjudicated. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs