Citation Nr: 22012223 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-53 120 DATE: March 2, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for status post right hydrocelectomy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to September 1972. This case comes to the Board of Veterans' Affairs (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a virtual Board hearing in October 2021. He stated that after he had surgery at VA to have a hydrocele removed in 2009, the fluid around his testicles only got worse. He stated that he went to a private doctor in Virginia, who told him that the first surgery had been "botched," because they failed to remove all of the fluid. He said that he had a second surgery in 2011, and this time all of the fluid was removed, but that he still has, as a residual of the surgery, problems with urinary leakage. Under 38 U.S.C. § 1151, compensation can be awarded for a qualifying additional disability if it was not the result of the veteran's willful misconduct and either: 1) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran by a VA employee or in a VA facility, and the proximate cause of the disability was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability was proximately caused by the provision of training and rehabilitation services as part of an approved rehabilitation program. 38 U.S.C. § 1151. The first element of a claim under 38 U.S.C. § 1151 is whether the Veteran has an additional disability as a result of VA care or treatment. 38 C.F.R. § 3.361. If an additional disability is present, the issue then becomes whether the VA procedure caused the additional disability. Id. A VA medical opinion was obtained in September 2018, and the examiner found that it was less likely than not that any additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care or that any disability resulted which was not reasonably foreseeable. The examiner does not, however, appear to have been aware of the Veteran's assertions that he does have additional disability, in the form of urinary leakage, as this was not addressed. The examiner also did not address the Veteran's assertions that his second surgery was not just due to a regular reoccurrence of the hydrocele, but that the hydrocele persisted, causing symptoms of swelling and pain, ever since the first surgery. The Board therefore remands this issue in order to obtain a medical examination and opinion that fully considers all of the Veteran's assertions, including whether he has the additional disability of urinary leakage due to his 2009 hydrocelectomy. The Board notes that it is unclear from the medical records whether the Veteran's urinary incontinence is actually a symptom caused by his hydrocele surgeries. In October 2007 and November 2008, prior to either of his surgeries, the Veteran reported decreased bladder control and occasional incontinence. The Veteran is asked to provide any additional private treatment records related to his surgeries or his incontinence in order to assist the examiner in determining the likely etiology of his urinary incontinence. The matters are REMANDED for the following action: 1. Send to the appellant and his representative a letter requesting that the appellant provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain the Veteran's private medical records for all treatment of his hydrocele, including all treatment after his 2009 surgery, and for his current complaints of urinary leakage. They should be informed that they may also submit these records themselves. If the appellant provides completed release forms authorizing VA to obtain these treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. 2. Obtain all VA treatment records since September 2018. 3. Schedule the Veteran for an examination to evaluate his current residuals from his September 2009 and January 2011 hydrocelectomy surgeries and to obtain a medical opinion on whether any carelessness or negligence occurred during his 2009 surgery. The examination may be held via telehealth during social distancing restrictions and an opinion can be provided based on other medical evidence of record. The examiner must specify in the report that the claims file has been reviewed. The examiner should then address: a) Does the Veteran have any additional disability as a result of his hydrocelectomy surgery performed in September 2009? Is the Veteran's urinary leakage a symptom of his hydrocelectomy? Please discuss the Veteran's reports that he has had urinary leakage ever since his surgery, and the 2007 VA treatment record noting decreased bladder control and occasional urinary leakage. If the Veteran's urinary symptoms are not caused by his hydrocelectomy, what is the etiology? b) If the Veteran does have urinary symptoms attributable to his hydrocelectomy, is the development of these symptoms, or any other residuals that were found, something that was not reasonably foreseeable? c) Did any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA occur during the Veteran's September 2009 surgery? What evidence supports these findings? Please discuss the Veteran's assertions that he was told by a private physician that the VA surgeon had "botched" his surgery by failing to remove all of the fluid from around his testicles, and this is why he had such severe pain and swelling afterwards which resulted in the need for another surgery. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.