Citation Nr: 21063843 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-08 794 DATE: October 18, 2021 ISSUE Entitlement to service connection for a bladder disability, to include as due to service-connected post-traumatic stress disorder (PTSD). REMANDED Entitlement to service connection for a bladder disability, to include as due to service-connected post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from February 1961 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in January 2018 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. By way of background, a rating decision from December 2011 denied the Veteran's claim to entitlement to service connection for post-traumatic stress disorder. The Veteran did not immediately appeal that denial, which then became final. In a September 2016 rating decision, the Veteran's PTSD claim was reopened but subsequently denied, in addition to the denial of secondary claims for her stomach and bladder disability. The Veteran appealed this denial, and in a Board decision from June 2018, the Veteran's claim of entitlement to service connection for PTSD was granted. In that same June 2018 Board decision, the Veteran's claims of entitlement to service connection for the bladder and the stomach disability, each to include as due to PTSD, were remanded for a VA etiological opinion and subsequent adjudication. In a May 2020 decision, the Veteran's claims were remanded for further development. In a November 2020 decision, the Board denied entitlement to service connection for the bladder disability but remanded the Veteran's claim for entitlement to service connection for the stomach disability, to include as due to PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) that part of the Board's November 2020 decision which denied the Veteran's claim of entitlement to service connection for a bladder disability. In an August 2021 Joint Motion for Partial Remand (JMPR), the parties (the Veteran and the Secretary of Veterans Affairs) agreed that the November 2020 decision did not contain a sufficient statement of reasons or bases for its findings because it relied on a VA medical opinion that was not in substantial compliance with prior remand instructions. See August 10, 2021, JMPR, pg. 1. The JMPR was granted by an Order of the United States Court of Appeals for Veterans Claims (Court) dated in August 2021. See CAVC Order, August 16, 2021. As such, that part of the Board's November 2020 decision which denied entitlement to service connection for bladder disability was vacated and remanded for further proceedings consistent with the JMPR. The matter has now returned to the Board for further action consistent with the terms of the JMPR. As will be discussed below, the Board finds that further development is required prior adjudication of this Veteran's claim. This appeal has been advanced on the docket of the Board of Veterans' Appeals (Board) pursuant to 38 C.F.R. § 20.900 (c). Entitlement to service connection for a bladder disability is remanded, to include as due to service-connected PTSD is remanded. The Veteran contends that her bladder disability is related to service. The Veteran also contends that her bladder disability was either caused or aggravated by her service-connected PTSD. As referenced in the introduction of this decision, the parties agreed that the Board's November 2020 decision did not contain a sufficient statement of reasons or bases for its findings because it relied July 2020 VA medical opinion that was not in substantial compliance with the Board's prior remand. The Board notes that during the course of this appeal, the Veteran has been afforded etiological opinions with respect to her bladder disability in September 2019 and July 2020. The September 2019 VA opinion was deemed inadequate by the Board in a May 2020 decision and subsequently remanded the matter for a new medical opinion. Pursuant to the Board's May 2020 remand, the Veteran was afforded an additional etiological opinion in July 2020. The July 2020 examiner rendered a negative nexus opinion to service. The examiner also determined that the Veteran's bladder disability was not proximately caused or aggravated by stress, PTSD or military sexual trauma. With respect to proximate cause, the examiner opined that the Veteran bladder disability (incontinence) was proximately due to her 2006 stroke. The examiner also opined, in pertinent part that "this is a condition with a clear and specific etiology and diagnosis. It was diagnosed after her stroke in September 2006. This is clearly documented in her VA medical records and private medical records. She has been referred to see several urologists, gynecologist and prescribed urodynamic exercises with Kegel exercise and biofeedback." See July 16, 2020 Medical Opinion, pgs. 5-7. The Board noted that in the May 2020 remand, that VA examiner was specifically directed to the Veteran's October 2019 statement, indicating that her bladder disability began prior to her stroke in 2006, as well as her January 2018 Board testimony that her bladder issues are aggravated by stress and PTSD. However, in this medical opinion, the parties agreed that there is no clear indication that the July 2020 examiner took into account this Veteran's lay statement (beyond a generic statement that the entire claims file has been reviewed). See August 2021, JMPR, pgs. 3-5; See also, October 2, 2019 VA Form 21-4138, Statement in Support of Claim re: lay statement. With respect to aggravation, the July 2020 examiner opined, in pertinent part, that the Veteran's current urinary incontinence and urgency and abdominal problems namely dysphagia/abdominal pains was not due to or aggravated beyond normal progression by events in service or due to sexual trauma or PTSD. This is a condition with a clear and specific etiology and diagnosis. It was diagnosed after her stroke in September 2006. See July 16, 2020 Medical Opinion, pgs. 7-9. Here, the parties agreed that the July 2020 rationale is limited to supporting the view that a 2006 stroke caused the condition and does not contain any rationale that addresses whether the Veteran's PTSD may aggravate the Veteran's bladder condition. See August 2021 JMPR, pgs. 4-5. The Board is also cognizant that the parties agreed that the Board did not provide an adequate statement of reasons or bases on the probative value of a February 2018 statement from Dr. J.C. This February 2018 companion statement followed a February 2017 medical opinion from Dr. J.C. In its November 2020 decision, the Board did not assign any probative value to this February 2017 etiological opinion. In this November 2020 decision, the Board noted that the February 2017 medical opinion was determined to be inadequate by in the Board in June 2018 because this February 2017 medical opinion stated that medical records from 2015 and 2016 discussed sexual trauma as a potential cause for the Veteran's incontinence. The Board found that these 2015 and 2016 records did not, in fact, discuss sexual trauma and therefore the February 2017 medical opinion was based on an inaccurate factual premise. The parties agreed however that the February 2017 statement itself is the opinion regarding potential causes, but it does not indicate that the 2015-2016 medical records discuss sexual traumas as a potential cause. The parties agreed that the Board's statement in this regard is inaccurate. See August 2021 JMPR, pg. 3. Upon reexamination of the evidence of record, and to comply with the terms of the August 2021 JMPR to provide an adequate statement of reasons and basis for its decision on all the issues raised, the Board finds that Veteran should be afforded an additional VA Medical Opinion prior to adjudication to specifically address the whether the Veteran's bladder disability was proximately caused or aggravated by her service-connected PTSD. Accordingly, this matter is REMANDED to the AOJ for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Forward the claims file to a physician with sufficient medical expertise to provide an addendum medical opinion as to the proximate cause of this Veteran's bladder disability. The Veteran need not be scheduled for another VA medical examination unless deemed to be necessary by the to provide the requested medical opinion. The claims folder, a copy of this remand and the August 10, 2021 JMPR must be made available to the examiner for review, and the addendum medical opinion must reflect that such a review was undertaken. After review of all of the pertinent evidence of record with respect to this Veteran's claim, the physician- examiner should provide an opinion as to the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran's bladder disability was proximately caused by or aggravated by her service-connected PTSD beyond its natural progression by her service-connected PTSD. *The examiner is reminded that permanent aggravation need not be shown. Rather, aggravation refers to any incremental increase in disability resulting from service-connected conditions regardless of its permanence. See Ward v. Wilkie 31 Vet. App. 233, 241-42 (2019). *For purposes of this addendum opinion, the examiner's is drawn to the Veteran's October 2, 2019 statement, indicating that her bladder disability began prior to her stroke in 2006, as well as her January 2018 testimony where she testified that her bladder issues are aggravated by stress and PTSD. See October 2, 2019 VA Form 21-4138, Statement in Support of Claim (Receipt Date, October 4, 2019); See also, January 2018 Board Hearing testimony, pgs. 14-18. If there is a medical reason to doubt the history as reported, the examiner should so state. *For purposes of this addendum opinion, the examiner is also asked to discuss the February 13, 2017 private medical opinion from Dr. J.C., and the February 20, 2018 companion document which provides citations from Up to Date (a computer-based source of current medical research and guidance). A detailed rationale for the opinions expressed must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 3.Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file The Veteran and her Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, Associate 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.