Citation Nr: 21062979 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-44 509 DATE: October 12, 2021 ORDER Entitlement to a compensable rating for an appendectomy scar is dismissed. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals from transurethral resection of the prostate (TURP) is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of vasectomy surgery is remanded. FINDING OF FACT At the June 2021 Board hearing, the Veteran's representative requested withdrawal of the appeal of the issue of entitlement to a compensable rating for an appendectomy scar. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issue of entitlement to a compensable rating for an appendectomy scar have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to December 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified before the undersigned in a Board hearing. The transcript of the hearing has been associated with the claims file. The Board also notes that the record was held open for 90 days for submission of additional evidence following the June 2021 Board hearing. Yet, no additional evidence was submitted. Withdrawn Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Entitlement to a compensable rating for an appendectomy scar is dismissed. During the June 2021 Board hearing, on the record and after the Veteran was provided an explanation of the consequences of withrdrawing the claim, and prior to promulgation of a Board decision in the appeal, the Veteran indicated that he wished to withdraw his appeal of the issue of entitlement to a compensable rating for an appendectomy scar. With regard to the issue withdrawn by the Veteran, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. 38 U.S.C. § 7105(b)(2), (d)(5). REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals from transurethral resection of the prostate is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of vasectomy surgery is remanded. The Veteran contends that entitlement to compensation under 38 U.S.C. § 1151 for residuals from transurethral resection of the prostate (TURP) and residuals of vasectomy surgery is warranted. As an initial matter, the Board notes that the Veteran underwent surgery for a TURP and a vasectomy in July 2010. The Veteran underwent a Genitourinary examination in March 2011. At the time of the examination, the Veteran reported that he had symptoms of nocturia three to four times, voiding every hour during the day, and episodes of urinary urgency incontinence. The Veteran also stated that, following his TURP and vasectomy, he had dysuria and testicular pain. The examiner noted that the Veteran underwent a vasectomy in July 2010. The Veteran presented to an outpatient clinic for symptoms of dysuria in August 2010 and complaints of lower urinary tract symptoms of nocturnal anuresis and pain in his penis when he urinated in September 2010. The examiner stated that there was no derivation from "good urological care at the various junctures that he was treated including his transurethral resection and vasectomy." The examiner further noted that while the Veteran was not happy with his voiding complaints, these were complications that were explained to him and there was no observable evidence of negligence or malpractice in his care. In a July 2015 Urinary Tract Conditions DBQ, an examiner noted that the Veteran was assessed with benign prostatic hyperplasia (BPH) with obstruction and urinary urgency incontinence. At the time of the examination, the Veteran reported that two months after his TURP and bilateral vasectomy, it became necessary for him to do intermittent self-catheterization for a year to 18 months thereafter. He also stated that his Interstim trial and implantation in 2013 were a "big help," but that there are still times where he must catheterize himself to fully empty his bladder which results in occasional urinary tract infections. In the Remarks section of the report, the examiner noted that post-op TURP studies showed an excellent outcome from treatment of obstruction by the TURP and that his functional result was quite good. The examiner also noted that there were no observed signs/evidence of carelessness, negligence, lack of skill on the part of treating VA personnel and "quite the opposite as their result was exemplary." Additionally, the VA examiner stated that the Veteran's incontinence was present to some degree prior to the surgery and temporarily worse urgency incontinence after TURP is not expected and that his subjective complaint of dysuria for one year thereafter is unusual and unexplained. During the June 2021 hearing, the Veteran testified that the residual problems following his TURP and vasectomy were a result of a lack of skill or competence. The Veteran further noted that following the procedures, he had to self-catheterize every time he had to urinate and even underwent three surgeries to install InterStims. The Veteran stated that he will have to have surgery every four years for the remainder of his life. Notably, the Veteran stated that the batteries in his InterStim died in 2019 and he was subsequently put back on catheters and that such resulted in poor kidney function. The Veteran testified that he has a severe epididymitis, which he believed was a result of his vasectomy. The Board finds that the March 2011 and July 2015 opinions are inadequate for decisional purposes and that an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the opinions of record do not include consideration of the Veteran's current symptomatology, to include his reports that, as a result of his TURP, he has had to self-catheterize for the past eleven years and had to have an InterStim implanted and has to undergo additional surgeries every four years. Additionally, the opinions of record do not include consideration of the Veteran's claims, to include that he has suffered severe epididymitis as a result of his vasectomy. As such, the Board finds that a remand is necessary to obtain a medical opinion, which considers and addresses the Veteran's contentions discussed above. The matters are REMANDED for the following action: 1. Obtain an opinion addressing the issue of entitlement to compensation under 38 U.S.C. § 1151 for residuals of the July 2010 TURP. After review of the evidence of record, a urologist or examiner with appropriate expertise of the male reproductive system should furnish an opinion with respect to the following questions: (a) Are the Veteran's residual symptoms, to include urgency, dysuria, inability to empty his bladder and difficulty starting urination, testicular pain, kidney problems, long-term catheterization, and/or the implantation of an InterStim proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of faulty on the part of the VA medical center following the TURP procedure? (b) If the response to (a) is negative, is there a current disability caused by VA treatment that is due to an event not reasonably foreseeable? When answering the question, the examiner should not focus on whether the event was actually foreseen but should instead address whether a reasonable medical practitioner responsible for the Veteran's surgery would have foreseen the event or additional disability and provided informed consent on it. The examiner must specifically consider and discuss the contentions of the Veteran, to specifically include his June 2021 testimony. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be considered and addressed within the opinion. If the examiner rejects any of these reports, the examiner must provide an explanation for such rejection. The complete rationale for all opinions is required. The rationale must include a discussion of the facts and medical principles involved. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Obtain an opinion addressing the issue of entitlement to compensation under 38 U.S.C. § 1151 for residuals of the July 2010 vasectomy. After review of the evidence of record, a urologist or examiner with appropriate expertise of the male reproductive system should furnish an opinion with respect to the following questions: (a) Are the Veteran's residual symptoms, to include epididymitis, proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of faulty on the part of the VA medical center following the TURP procedure? (b) If the response to (a) is negative, is there a current disability caused by VA treatment that is due to an event not reasonably foreseeable? When answering the question, the examiner should not focus on whether the event was actually foreseen but should instead address whether a reasonable medical practitioner would have foreseen the event or additional disability. The examiner must specifically consider and discuss the contentions of the Veteran, to specifically include his June 2021 testimony. The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be considered and addressed within the opinion. If the examiner rejects any of these reports, the examiner must provide an explanation for such rejection. The complete rationale for all opinions is required. The rationale must include a discussion of the facts and medical principles involved. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then, re-adjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.