Citation Nr: 21004627 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-05 378 DATE: January 27, 2021 REMANDED The issue of entitlement to compensation under 38 U.S.C. § 1151 for atonic or neurogenic bladder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1958 to July 1958. In August 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a travel board hearing. Dr. P. B. also testified under oath at the hearing. A transcript of the hearing is of record. In February 2019, the appeal was remanded by the Board for further development. For the reasons outlined below, the Board finds that remand is again needed in this matter. Entitlement to compensation under 38 U.S.C. § 1151 for atonic or neurogenic bladder. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. Specifically, the Board seeks clarification as to whether the Veteran has a “qualifying additional disability,” as contemplated under 38 U.S.C. § 1151. The Board acknowledges the January 2020 VA examination that reports the following diagnoses: benign prostate hyperplasia (BPH), urinary retention, atonic bladder, neurogenic or a severely dysfunctional bladder, and a severely enlarged prostate. A March 2020 opinion clarifies that the Veteran “currently does not suffer from atonic bladder.” (Emphasis added). If not a current diagnosis, the Board seeks clarification as to when the Veteran did have an atonic bladder. In addition, for this disability and for all diagnosed disabilities, the Board seeks clarification as to whether they are qualifying additional disabilities as contemplated under 38 U.S.C. § 1151. Further, the Board acknowledges another March 2020 VA opinion, which attempts to address several of the directives outlined in the February 2019 Board remand. However, it is unclear to the Board to which disability the analysis offered in the opinion refers, and again whether such a disability is a qualifying additional disability under 38 U.S.C. § 1151. The Board appreciates that the examiner wrote that “[t]he proximate cause of the disability is an event not reasonably foreseeable”; however, the Board needs clarification as to “the disability” to which the examiner refers and whether it is a qualifying additional disability. In addition, the March 2020 opinion states the following: “Misdiagnosis may have resulted in an overdistended bladder but would not result in long term loss of bladder function acutely, can only happen with chronic obstruction and distension.” Then, the examiner writes: “I would agree with Dr. P.B.’s statement which I have reviewed.” In its February 2019 remand, the Board asked the examiner to address the written opinion of Dr. P. B., and noted that the opinion states that atonic bladder is caused by, inter alia, severe trauma and obstruction of the urinary tract and that “a single, or even a few, episodes of obstruction do not cause the disorder.” See Dr. P. B. opinion, October 2018. However, while not quoted in the Board remand directives, the October 2018 opinion also states that “BPH is not a cause of Atonic Bladder, though it certainly contributes to episodes of obstruction. [The Veteran] has had two of these. It is only because the second one was so prolonged that his bladder doesn’t work.” Id. (Emphasis added). The Board seeks clarification as to whether the examiner agrees with these statements, or just the statement cited in the remand directive. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain an opinion from a urologist, or other qualified medical professional, to address whether the Veteran has an additional disability, caused by VA treatment in October 2013. The examiner should specifically address the following: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran has an “additional disability” caused by VA treatment? If so, the additional disabilities should be clearly identified. In clarifying whether the Veteran has an additional disability, the Board asks that the examiner address the diagnoses in the January 2020: benign prostate hyperplasia (BPH), urinary retention, atonic bladder, neurogenic or a severely dysfunctional bladder, and a severely enlarged prostate. The Board asks that the examiner also address the March 2020 opinion that states that the Veteran “currently does not suffer from atonic bladder.” (Emphasis added). If not a current diagnosis, the Board seeks clarification as to when the Veteran did have an atonic bladder. It should be clarified whether any of these disabilities are additional disabilities. The term “additional disability” means any condition that did not exist immediately before the VA treatment. The examiner must compare the Veteran’s condition immediately before and after the treatment. If there is no “additional disability,” then the examiner does not need to provide answers to (b) and (c) but must explain why the symptoms the Veteran contends constitute an “additional disability” are not additional disability caused by the VA treatment. (b) If the Veteran has an additional disability caused by VA treatment, then is it at least as likely as not that the proximate cause of such disability or disabilities is carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, discuss if VA failed to exercise the degree of care that is expected of a reasonable health care provider. (c) If the Veteran has an additional disability caused by the VA treatment, then is it at least as likely as not that the proximate cause of the disability was an event not reasonably foreseeable? Finally, the Board seeks clarification regarding the examiner’s statement in the March 2020 opinion that “I would agree with Dr. P.B.’s statement which I have reviewed.” As described above, in its February 2019 remand, the Board asked the examiner to address the written opinion of Dr. P. B., and noted that the opinion states that atonic bladder is caused by, inter alia, severe trauma and obstruction of the urinary tract and that “a single, or even a few, episodes of obstruction do not cause the disorder.” See Dr. P. B. opinion, October 2018. However, while not quoted in the Board remand directives, the October 2018 opinion also states that “BPH is not a cause of Atonic Bladder, though it certainly contributes to episodes of obstruction. [The Veteran] has had two of these. It is only because the second one was so prolonged that his bladder doesn’t work.” Id. (Emphasis added). The Board seeks clarification as to whether the examiner agrees with these statements, or just the statement cited in the remand directive. Finally, the Board asks that the examiner consider VA and private medical opinions of record, as well as articles and lay statements submitted by the Veteran. Review of such evidence should be noted in the examination report. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.