Citation Nr: 21006516 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-18 750A DATE: February 4, 2021 REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a bladder disorder related to a laminectomy performed at a Veterans' Administration Medical Center (VAMC) in September 2012 is remanded. REASONS FOR REMAND The Veteran had active service with the United States Marine Corps from July 1966 to June 1968. In September 2016, the Veteran provided testimony before the Board via video conference. A transcript of the hearing has been associated with the claims file. First, the Board must note for the record that the record shows that the Veteran has been in receipt of a total rating based on individual unemployability (TDIU) since April 1, 2009, and a 100 percent combined schedular rating since September 3, 2014. In an October 2018 decision, the undersigned denied the 38 U.S.C. § 1151 claim for a bladder disorder and referred to the regional office (RO) a claim of service connection for a bladder disorder to include secondary to the Veteran’s service connected prostate cancer. Notwithstanding the above, the Veteran appealed the October 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2020 memorandum decision, Senior Judge Moorman issued a decision that vacated and remanded the October 2018 Board decision. In this regard, the Board notes that the Court’s January 2020 memorandum decision directed the Board to, among other things, “… address whether a claim for neurogenic bladder was reasonably raised by [the Veteran] or the record…” There appears to be some confusion on this issue. The Board earlier characterization of the issue on appeal as “detrusor failure with urinary retention related to a laminectomy performed at a VAMC” in the October 2018 decision, as well as the above characterization, includes all bladder disorders to include a neurogenic bladder. See Clemons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). To avoid any further uncertainty, the Board has recharacterized the issue as “[e]ntitlement to compensation under the provisions of 38 U.S.C. § 1151 for a bladder disorder related to a laminectomy performed at a Veterans' Administration Medical Center (VAMC) in September 2012” to fully address this concern. Therefore, the Board finds that it need not take any further action as to this part of the Court’s decision because it has already complied with the concern raised by the Court when it characterized the issue on appeal as it appears above. Once again, the Board must note for the record that the Veteran has been in receipt of a total rating based on individual unemployability (TDIU) since April 1, 2009, and a 100 percent combined schedular rating since September 3, 2014. Therefore, while the appeal is in Remand status the Veteran, after consultation with his representative, he may wish to withdraw his case (in writing). It appears that in light of the appeal to the Court, the Board’s remand of the claim of service connection for a bladder disorder, to include secondary to the Veteran’s service connected prostate cancer, was delayed, because the RO clearly did not believe it could address this issue while the other issue was before the Court. Entitlement to compensation under 38 U.S.C. § 1151 for a bladder disorder related to a laminectomy performed at a VAMC in September 2012 is remanded. As to the 38 U.S.C. § 1151 claim for a bladder disorder, the January 2020 memorandum decision vacated and remanded the October 2018 Board decision because, in substance, the September 2014 VA opinion was not adequate because it did not address the relevant question before the Board (i.e., whether the Veteran’s bladder disorder was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” treatment or by “an event not reasonably foreseeable.” 38 U.S.C. § 1151(a)(1)(A)-(B)). Therefore, the Board finds that a Remand is required to obtain an adequate etiology opinion. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the appeal is in remand status, any outstanding and pertinent VA and private treatment records that document complaints, diagnoses, or treatment for pre and post-September 2012 bladder disorders should also be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records that document complaints, diagnoses, or treatment for pre and post-September 2012 bladder disorders. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding and pertinent private treatment records that document complaints, diagnoses, or treatment for pre and post-September 2012 bladder disorders. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 3. In order to comply with the Court’s January 2020 memorandum decision, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the claim for VA compensation benefits under 38 U.S.C. § 1151 for a bladder disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, if needed, the examiner is asked to address the following: i. Provide diagnoses of all bladder disorders. If he does not have detrusor failure with urinary retention and/or a neurogenic bladder the examiner must clearly say so. ii. Provide an opinion as to whether the Veteran has any additional bladder disorder, including detrusor failure with urinary retention and a neurogenic bladder, due to the laminectomy performed at VA in September 2012. If he does not have an additional bladder disorder, the examiner must clearly say so. iii. As to each additional bladder disorder due to the laminectomy performed at VA in September 2012 including a detrusor failure with urinary retention and a neurogenic bladder, if appropriate, provide an opinion as to whether it is at least as likely as not that it was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment. iv. As to each additional bladder disorder due to the laminectomy performed at VA in September 2012 including a detrusor failure with urinary retention and a neurogenic bladder, if appropriate, provide an opinion as to whether it is at least as likely as not foreseeable. In providing answers to the above questions, the examiner should consider the Veteran’s competent claims regarding observable symptomatology. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating 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 in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.