Citation Nr: 1329886 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 07-13 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to compensation under 38 U.SC.A. § 1151 for a bladder disorder, to include residuals of removal of a tumor, due to surgery for cancer of the prostate. 2. Entitlement to service connection for a pelvic disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from October 1968 to May 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision from the Regional Office (RO) in Los Angeles, California. The Veteran indicated on his May 2007 VA Form 9 that he wished to testify at a Board hearing. In August 2007 correspondence, he withdrew the hearing request. In August 2010 the Board remanded the claim for further development via the Appeals Management Center (AMC) in Washington, DC, to include additional development of the evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) paperless claims file. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Pursuant to the August 2010 Board remand, the Veteran underwent a VA examination in December 2010. The examiner opined that the Veteran's urinary incontinence is caused by or a result of his 1999 radical retropubic prostatectomy. However, the examiner made no opinion as to whether the Veteran's disorder was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment or examination; or, whether the Veteran has additional disability caused by VA medical treatment or examination, the proximate cause of which was an event that was not reasonably foreseeable. Thus, the case should be returned to the examiner for an addendum to the report that will specifically address this question. Also, the December 2010 VA examiner opined that the claimed pelvic disorder is not caused by or a result of or causally linked to any incident of service, to include a 1968 in-service appendectomy. The examiner noted that there was no evidence or diagnosis of any right sided pelvic disorder. The examiner stated that the left sided pelvic scrotal ultrasound findings are unrelated to his appendectomy or to any other event in service. The examiner provided no rationale for the opinion that the left sided pelvic scrotal ultrasound findings are unrelated to his appendectomy or to any other event in service. Also, in a February 2012 informal hearing presentation the Veteran's representative argued that the December 2010 VA examiner failed to mention any service treatment records suggesting that the Veteran suffered from some condition of the lower pelvic area not necessarily related to the in-service appendectomy. Thus, the case should be returned to the examiner for an addendum to the report that will provide an adequate rationale for this opinion. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Obtain outstanding VA treatment records, particularly those from the Long Beach VA Medical Center, dating since November 2010. 2. After the above development is completed, return the claims file to the December 2010 VA examiner, if available, for clarification of the provided opinions. Following review of the claims file and relevant electronic VA treatment records, the examiner should: i) prepare a detailed medical opinion as to whether it is at least as likely as not (whether there is a 50 percent or greater probability) that the Veteran's urinary incontinence was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical treatment or examination; or, whether the Veteran has additional disability caused by VA medical treatment or examination, the proximate cause of which was an event that was not reasonably foreseeable. ii) explain the basis for the conclusion that the Veteran's left sided pelvic scrotal ultrasound findings are unrelated to his appendectomy or to any other event in service, particularly noting any other in-service incident regarding the pelvis or surrounding area. The December 2010 VA examiner should provide an explanation of the rationale for each opinion. If the December 2010 VA examiner is not available, arrange for the opinion to be provided by another examiner. If a new examination is deemed necessary, one should be scheduled. 3. After completion of the foregoing and all other necessary development, the AMC/RO should re-adjudicate the claims. If the benefits sought remain denied, the Veteran and his representative must be furnished an SSOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant 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. 2013). _________________________________________________ APRIL MADDOX Acting 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) (2013).