Citation Nr: 22005293 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 17-52 484 DATE: February 1, 2022 REMANDED Entitlement to compensation benefits under 38 U.S.C. §1151 for residuals of an April 2015 cystolithalopaxy, to include voiding obstruction due to one residual stone and memory deficits due to anesthesia, is remanded. REASONS FOR REMAND The Veteran had active service from June 1980 to December 1983. This case was previously before the Board of Veterans' Appeals (Board) in November 2019. At that time, the Board remanded the Veteran's claim for further development. The Veteran asserts that he is entitled to compensation benefits under 38 U.S.C. §1151 for residuals of an April 2015 cystolithalopaxy, to include voiding obstruction due to one residual stone and memory deficits due to anesthesia. Prior to the cystolithalopaxy, the Veteran had six bladder stones. During this surgery, the surgeon was unable to remove one stone due to its location and bleeding. The Veteran was advised to undergo further surgery to remove the remaining stone, but refused citing anxiety related to anesthesia. See, e.g., October 201 VA examination. In October 2016, a Board-certified urologist opined that the Veteran does not have an additional disability stemming from the April 2015 cystolithalopaxy. Rationale was that the surgery removed 5 of the Veteran's 6 bladder stones and that the Veteran has refused to undergo additional surgery to remove the residual stone. The November 2019 Board remand directed the Regional Office to obtain a new VA examination with opinions specifically addressing the Veteran's reported voiding obstruction and memory deficits. The Veteran was examined by VA in October 2020, at which time the examiner opined that it was less likely than not that the Veteran's claimed residuals of his 2015 cystolithalopaxy were caused by, or became worse as a result of, his VA treatment. However, the examiner did not sufficiently explain her conclusions. Regarding the Veteran's urinary issues, the examiner stated that risk factors include, among others, overactive bladder (OAB) and that causes of OAB include postoperative pelvic surgery and bladder stones. Thus, it is unclear why she concluded that the Veteran's voiding issues were not caused or worsened by his 2015 VA treatment, when she had also stated that surgery and bladder stones could cause such conditions. She also noted that there was no record of the Veteran having immediate and subsequent sequelae of his procedure during his hospital stay in April 2015, but disregarded the Veteran's competent lay reports that his urinary symptoms began after the surgery. Regarding the Veteran's memory deficits, she stated that the Veteran's medical records did not note any memory condition proximate to his 2015 cystolithalopaxy, but again disregarded his competent lay reports that his memory issues began following the 2015 cystolithalopaxy when hospital staff were unable to wake him from anesthesia for several hours. The November 2019 remand directed the examiner to address the Veteran's reports of voiding obstruction and memory deficits after the April 2015 cystolithalopaxy when rendering an opinion on whether the Veteran developed additional disability from this procedure. As previously discussed, such was not done. Compliance with remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board errs as a matter of law when it fails to ensure compliance with remand orders. Id. As the October 2020 VA examiner did not comply with the November 2019 remand directive, the Board has no recourse but to remand this issue again to ensure that the previously requested development is completed. Id. An addendum opinion is needed to address these issues with the October 2020 VA examiner's opinions before the Board can decide this claim. Accordingly, the matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate examiner other than the one who provided the October 2020 VA examination in this matter. If an opinion cannot be provided without an examination, one should be provided. Upon review of the Veteran's claims file (including a copy of this Remand) and any examination deemed necessary, the examiner should: (a.) Opine as to whether the Veteran developed additional disability following his April 2015 cystolithalopaxy. In rendering this opinion, the examiner should address the Veteran's report of (i) voiding obstruction and (ii) memory deficits following the April 2015 cystolithalopaxy. (b.) For each additional disability identified in (a), opine as to whether the Veteran developed that disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in its treatment of the Veteran during the April 2015 cystolithalopaxy. (c.) Also for each additional disability identified in (a), opine as to whether the development of that disability was an event not reasonably foreseeable. That is, was developing the additional disability the type of risk that a reasonable health care provider would have disclosed? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner should also ensure to address the October 2020 VA examiner's statement that the Veteran's urinary issues could be caused by an overactive bladder which could be caused by pelvic surgery and bladder stones. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.