Citation Nr: 21025637 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-62 677 DATE: April 28, 2021 REMANDED Entitlement to service connection for neurogenic bladder due to T12 myelopathy is remanded. Entitlement to service connection for neurogenic pain due to T12 myelopathy is remanded. Entitlement to service connection for limited use of both hands due to T12 myelopathy is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for an additional disability caused by a June 2010 VA surgery, including osteomyelitis, stage II right ischial, sacral ulcer/wound, and a methicillin-resistant staphylococcus aureus (MRSA) skin infection, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1972 to November 1974 with subsequent service in the National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and June 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, a hearing was held before the undersigned. A transcript of the hearing is of record. The Veteran previously filed a claim for benefits under 38 U.S.C. § 1151 based on the January 2010 VA surgery, which was denied in June 2011 and October 2011 rating decisions. The Veteran submitted additional evidence within one year of the October 2011 rating decision and expressed disagreement with the decisions in a March 2012 statement. Therefore, the decisions did not become final and, as noted above, it is the October 2011 decision that is on appeal for the § 1151 issue. 1. Entitlement to service connection for neurogenic bladder due to T12 myelopathy. 2. Entitlement to service connection for neurogenic pain due to T12 myelopathy. 3. Entitlement to service connection for limited use of both hands due to T12 myelopathy. The Veteran has asserted that he has a neurogenic bladder, neurogenic pain and limited use of both hands due to T12 myelopathy, which was caused by a gunshot wound in September 1989 while he served in the National Guard. In a May 2013 statement, the Veteran stated that the injury occurred while he was trying to recover one of his subordinates in the National Guard who was absent without leave. A May 2014 Information Report indicates the Veteran served in the National Guard from January 1980 to January 1991 and no active duty service or National Guard Activation periods were noted. The RO made requests to the DC National Guard for records in February 2014 and March 2014. No response was received. The Veteran was informed that no response was received from the National Guard in a March 2014 letter. In an April 2014 response, the Veteran stated that he was assigned to the 104th Maintenance Company with the DC National Guard. He provided an address and telephone number and stated that all requests for record should be mailed or faxed to the National personnel Records Center (NPRC). Following the Veteran’s response, the RO did not make any additional attempts to obtain the records, but notified the Veteran that the complete service treatment records could not be located in an April 2014 letter. The Veteran’s National Guard records, including personnel records, are not in the claims file. As the Veteran has asserted that the injury occurred while he was performing duties as a member of the National Guard, and the National Guard records are relevant to determining whether he was on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) at the time of the injury, the Board finds that another attempt must be made to obtain the records. 4. Entitlement to compensation under 38 U.S.C. § 1151 for osteomyelitis, stage II right ischial, sacral ulcer/wound, and MRSA skin infection. The Veteran has asserted that he has an additional disability due to surgery performed in January 2010 by VA and is entitled to compensation under 38 U.S.C. § 1151. At the January 2021 hearing, the Veteran’s spouse testified that VA performed surgery on the wrong area and he never gave consent for surgery on the right hip, which he asserts resulted in additional disabilities of osteomyelitis, MRSA skin infection, and stage 2 right ischial and sacral ulcer or open wound. A VA opinion was obtained on June 3, 2014. The VA examiner found that it was impossible to give an opinion without resort to mere speculation because insufficient records were provided to render an opinion. The examiner stated that in a legal case such as this the entire hospitalization record is required, every page, including nurses’ notes, consent forms, pharmacy notes, daily progress notes from all physicians involved and all service involved, but only part of the hospital notes were sent. Following the opinion, VA discharge summary records, including one from March 2010 following the January 2010 surgery, were obtained and added to the record. Another VA opinion was obtained on June 17, 2014. The VA examiner noted that he could not find a consent form signed by the patient to confirm that he understood the procedure to be performed. It appears the complete records regarding the Veteran’s January 2010 surgery have not been obtained. As the June 17, 2014 VA examiner noted that he was unable to find the consent form in the file, and the Veteran has asserted that he never gave consent for the surgery, the complete VA treatment records are relevant to the claim and must be obtained. A January 2010 VA record indicates that the Veteran provided informed consent for skin-tissue flap surgery. The record noted that the full consent document can be accessed through Vista imaging. However, it does not appear that the Vista imaging records are in the claims file. It also does not appear that an attempt was made to obtain the nurses’ notes, pharmacy notes, or daily progress notes referenced by the June 3, 2014 VA examiner as being relevant to the claim. In addition, the June 17, 2014 VA examiner stated that, “I see no evidence in the medical record of ‘additional disabilities.’” However, he did not provide a rationale for the opinion that the Veteran did not have additional disabilities as a result of the January 2010 VA surgery. The examiner noted that there were complications of additional infections and ulcers following the surgery, but did not indicate whether these were additional disabilities. Therefore, an additional opinion is necessary. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran’s complete service treatment and personnel records from his period of service in the National Guard, including from September 1989. Verify all active duty for training and inactive duty training dates for alleged service in the DC National Guard in 1989, particularly in September 1989. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain all VA treatment and hospitalization records relating to the January 2010 VA surgery and treatment, including all consent forms, if any, nurse notes, pharmacy notes, and/or daily progress notes, including records from Vista imaging. Document all requests for information as well as all responses in the claims file. 3. Obtain a medical opinion to address whether the Veteran has an additional disability, to include osteomyelitis, stage II right ischial, sacral ulcer/wound, and/or MRSA skin infection caused by the January 2010 VA surgery and treatment. The clinician should specifically address the following: (a) Is it at least as likely as not that the Veteran has “additional disability” caused by the January 2010 VA surgery? If so, the additional disabilities should be clearly identified. If there is no “additional disability,” then the clinician does not need to provide answers to (b) and (c) but must explain why the symptoms that the Veteran asserts constitutes an “additional disability,” including osteomyelitis, stage II right ischial, sacral ulcer/wound, and/or MRSA skin infection are not additional disability caused by the January 2010 VA surgery furnished to the Veteran. The term “additional disability” means any condition that did not exist immediately before the Veteran’s January 2010 surgery. The clinician must compare the Veteran’s condition immediately before and after the January 2010 VA surgery. (b) If the Veteran has an additional disability caused by the January 2010 VA surgery, 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 hospital care, medical or surgical treatment, or examination, 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 January 2010 VA surgery, is it at least as likely as not that this additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with the informed consent (primary health care provider explains the reasonably foreseeable risks associated VA treatment or services furnished the Veteran)? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.