Citation Nr: 21027797 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-58 694 DATE: May 6, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a bladder disability, claimed as a bladder injury, contended to be due to an April 14, 2014, hysterectomy at a VA medical facility, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to December 1984 and from May 2001 to November 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran timely appealed requesting a hearing before the Board which was held in July 2020. A transcript is of record. Entitlement to compensation under 38 U.S.C. § 1151 for a bladder disability, claimed as a bladder injury, contended to be due to an April 14, 2014, hysterectomy at a VA medical facility is remanded. The Veteran contends she suffers from incontinence as a result of her April 2014 hysterectomy at a VA medical facility. The Board finds the evidence of record is insufficient to resolve her claim. Remand of this claim is necessary for several reasons. The Board reflects that to establish entitlement to compensation under 38 U.S.C. § 1151, there must be evidence of additional disability. However, whether there is an additional disability is defined in the VA legal framework. There must be evidence of an additional disability, as shown by comparing the Veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 U.S.C. § 1151; 38 C.F.R. § 3.301. Here, based upon review, the Veteran's 2020 hearing testimony and treatment records from 2011, 2012, 2013, and 2014 reflect complaints of and treatment for incontinence prior to the Veteran's hysterectomy. Treatment records following the April 2014 hysterectomy reference mixed urinary incontinence. VA opinions were obtained in May and June 2015 wherein the Veteran was noted to have a diagnosis of urinary incontinence in 2014. The June 2015 examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's hysterectomy based, in-part, on the reasoning that while the Veteran experienced a bladder injury during the procedure, it was repaired so it did not increase her urinary incontinence. Rather, the examiner reasoned that incontinence can be caused by a multitude of risk factors which applied to the Veteran including age, weight gain, and smoking. It remains unclear from the record, however, whether the Veteran has an additional disability under 38 C.F.R. § 3.361 in light of the conflicting evidence of the Veteran's incontinence prior to the April 2014 hysterectomy. Additionally, in a claim for compensation pursuant to 38 U.S.C. § 1151, fault may be established based on the VA furnishing care without informed consent. In order for consent to be "informed" under 38 C.F.R. § 17.32, certain requirements must be met. Upon review, April 2014 records indicate that the Veteran signed an informed consent for the procedure at issue, but the consent form of record did not discuss or address possible complications of the procedure. See April 2014 VA treatment records. Rather, the records note informed consent was obtained with the "full consent" documents available through VISTA imaging. Id. It is not otherwise clear from the record that the summarized consent form available contains all of the same information that is in the "full consent" form noted to be uploaded to VISTA imaging. In order to ensure the proper informed consent was obtained prior to the procedure at issue, the Board must review the complete version. As such, the Board finds remand is necessary so that attempts may be made to associate with the file all documents contained in VISTA imaging, including the "full consent" form from April 2014. See 38 C.F.R. § 3.159. The VA opinions of record merely address whether the Veteran's incontinence was caused by or increased by the 2014 hysterectomy. An opinion has not been rendered addressing whether the Veteran has an additional disability as a result of VA medical care and for any additional disability found, whether the disability/disabilities were the result of (a) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or (b) an event not reasonably foreseeable. The Board also notes the Veteran testified her previous examinations were completed by general practitioners versus specialists. The Board finds an examination conducted by a urologist is necessary in order to determine whether the Veteran has an additional disability for VA purposes in light of the evidence of incontinence prior to the procedure in question as well as to ensure any additional and necessary testing is completed. This claim is thus remanded to obtain another VA opinion in order to determine the Veteran's entitlement to compensation under 38 U.S.C. § 1151. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all records contained in VISTA imaging, to include the April 2014 "full consent" document associated with the Veteran's hysterectomy. 2. After the above development, schedule the Veteran for a VA examination before a urologist. The entire claims file and this remand should be made available to the urologist for review. The examiner should render an opinion, including rationale, addressing the following: (a.) Whether the Veteran has an additional disability after the April 2014 hysterectomy; and In so opining, the examiner is directed to compare the Veteran's condition before and after the VA medical care in question. Additionally, the examiner is directed to address the Veteran's treatment records and testimony of incontinence prior to April 2014 including in 2011, 2012, 2013, and early 2014 as well as the Veteran's statements of worsened incontinence following the April 2014 procedure. The examiner should complete any additional testing deemed necessary to determine whether the Veteran has an additional disability for VA purposes, the results of which should be included in the opinion. If there is no additional disability found, then the examiner need not move on to (b.) below, but should provide a thorough rationale for concluding there is no additional disability following the April 2014 procedure. (b.) If the Veteran has an additional disability following the April 2014 hysterectomy, then the examiner must also answer: whether the additional disability is at least as likely as not (50 percent or greater probability) a result of EITHER: (i) carelessness, negligence, or lack of proper skill, error in judgment, or similar instance of fault on the part of the VA, or, alternatively, (ii) an event not reasonably foreseeable. The examiner should review the surgical records as well as any consent forms of record in rendering the opinions requested. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include 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. (Continued on the next page) 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.