Citation Nr: 1302015 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-25 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for injury to urethra due to catheterization. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The Veteran's claim was remanded for further development in May 2011, and the case has since been returned to the Board for adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Upon careful review of the evidence of record, the Board finds that another remand is necessary prior to final adjudication of the Veteran's claim. In May 2011, the Board remanded the Veteran's § 1151 claim, for a VA examination to determine whether the Veteran had additional disability attributable to his July 2001 hospitalization. The Veteran contends that during this hospitalization, he sustained an injury to his urethra and has required multiple surgeries to correct the problem. As noted in the previous remand, the Veteran essentially contends that his current urinary incontinence was not caused by his radical prostatectomy, but by a subsequent faulty or incorrectly-sized catheter. The Board remanded for another examination because the August 2007 VA examination report was unclear as to whether the Veteran incurred an additional disability due to a faulty or incorrectly-sized catheter. The VA Medical Center (VAMC) in Columbia, Missouri was the location where the Veteran was hospitalized in July 2001 and where he contends an additional urethral disability was incurred. In an effort to ensure an unbiased opinion as to whether the VAMC in Columbia, Missouri caused an additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, the Board specifically requested that the Veteran be scheduled at a VAMC other than the Columbia VAMC. As requested in the remand, the Appeals Management Center (AMC) attempted to schedule the requested VA examination at VAMCs other than the Columbia VAMC. The Veteran was finally scheduled for a VA examination in August 2012 at the St. Louis VAMC (John Cochran Division) and a notation on the VAMC records shows that the Veteran requested that this examination be cancelled. In September 2012, the AMC contacted the Veteran to find out why the Veteran had cancelled his August 2012 VA examination. The AMC personnel explained to the Veteran why an examination was requested to take place at a VAMC other than the Columbia location. The Veteran indicated that there has been a misunderstanding and that he is satisfied with his care at the Columbia VAMC. Perplexingly, the Veteran "vehemently" denied any negligence on the part of the Columbia VAMC and stated that there would have been no way for them to prevent his injury. He also indicated that if he was awarded a 100 percent permanent and total rating for his service-connected disabilities, then he would drop his other issues-presumably his § 1151 claim. In correspondence received by VA in September 2012, the Veteran indicated that he did not attend his VA examination at the John Cochran VAMC. He specifically requested that his examination be rescheduled at the Columbia VAMC, and indicated that he has had a very thorough urology examination there recently. Despite the Veteran's specific request to go to the Columbia VAMC, another VA examination request at John Cochran VAMC was cancelled in October 2012. The Board recognizes that the AMC insisted on scheduling the Veteran at a VAMC other than the one in Columbia in order to comply with the Board's specific remand request. However, in light of the Veteran's expressed preference to report to the facility in Columbia rather than any other, the Board finds that he should be afforded an opportunity to be examined at the Columbia VAMC. The Board is certainly troubled by the Veteran's recent statements indicating that he did not feel that any VA health providers acted negligently or were otherwise at fault in giving him a catheter, which appears to call in to question the credibility of his earlier assertions. Nevertheless, given his past contentions, the complexity of the issue on appeal, and his expressed willingness to report to the Columbia VAMC for an examination, the Board finds that he should be given one more opportunity to undergo a VA examination. The Board further finds that the Veteran should be notified of the regulatory provisions regarding the consequences of failing to report for a scheduled VA examination. 38 C.F.R. § 3.655. If the Veteran fails to report for this examination, his claims file should be referred to a VA examiner for an opinion based upon a review of the claims file. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for an examination with an examiner with the appropriate expertise to determine whether he has any additional disability due to fault on VA's part due to claimed faulty or incorrectly sized catheterization in 2001. His VA examination should occur at the Columbia, Missouri VAMC. If possible, the examiner should be a person who has not treated the Veteran in the past. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file, including any pertinent evidence located in Virtual VA, must be made available to the examiner for review. The examiner is also asked to elicit relevant history from the Veteran directly. The examiner is requested to review all pertinent records associated with the claims file and to indicate whether there is any additional disability due to alleged faulty or incorrectly sized catheterization in 2001. If so, the examiner should also comment as to whether the additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment, including whether a faulty or incorrectly sized catheter was used in 2001, or whether the outcome of the procedure was an event not reasonably foreseeable. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This 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) (2012).