Citation Nr: 22044580 Decision Date: 08/05/22 Archive Date: 08/05/22 DOCKET NO. 19-05 607 DATE: August 5, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for aspiration pneumonia, loss of balance, genital infection, rash, and/or itching, and bladder and bowel control issues as a result of treatment by VA providers during hospitalization from October 23, 2015 to November 6, 2015, is remanded. REASONS FOR REMAND The Veteran has active service from June 1974 to June 1976. This case is before the Board of Veterans' Appeals (Board) from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at a March 2022 hearing. The Veteran claimed entitlement to service connection pursuant to 38 U.S.C. § 1151 for aspiration pneumonia, loss of balance, genital infection, rash, and/or itching, and bladder and bowel control issues as a result of VA treatment (05/18/2017 VA 21-526EZ, Fully Developed Claim; 09/19/2019 VA 21-4138 Statement In Support of Claim; 05/24/2018 NOD). The Veteran contends that while he was hospitalized from October 23, 2015 to November 6, 2015, he was catheterized improperly, resulting in an infection and genital itching that has persisted since. He contends during his hospitalization he was left alone without proper care, resulting genital rash from unchanged adult diapers. He contended, without specific detail, that he developed bladder and bowel control issues, aspiration pneumonia, and balance issues since that hospitalization (05/24/2018 NOD; 03/28/2022 Hearing Transcript; 09/19/2019 VA 21-4138 Statement In Support of Claim). The Board finds there is inadequate medical evidence to address the Veteran's contentions with regard to genital rash from unchanged adult diapers, and whether the Veteran's catheterization during his hospitalization could have resulted in his contended bowel and bladder issues. A review of the medical evidence of record confirms the Veteran was hospitalized from October 23, 2015 to November 6, 2015, and that he was catheterized (04/03/2019 CAPRI, pg. 672; 05/23/2017 CAPRI, pg. 459). Prior to the period of hospitalization, in July 2015, the record indicates the Veteran had complained of incontinence and nocturia (08/25/2015 CAPRI, pgs. 8 and 11). After hospitalization, the Veteran complained of incontinence in August 2016 (04/03/2019 CAPRI, pg. 471). During a January 2017 VA examination for his back, however, bowel or bladder problems were not noted (01/17/2016 C&P Exam, pg. 11). The Veteran complained of needing to wear adult briefs for bowel and bladder incontinence in September 2017. However, VA treatment notes reveal that he denied incontinence in August 2019, July 2020 and August 2020. He had, however, reported incontinence in December 2019. There is no opinion of record that addresses the Veteran's varying complaints of incontinence to include whether the Veteran's bladder and bowel control issues predated the period of hospitalization at issue. Further, there is no medical opinion of record as to whether any currently existing bowel or bladder issues were caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA between October 23, 2015 and November 6, 2015. Remand is therefore required. Although an opinion regarding the etiology of the Veteran's genital rash is of record (11/01/2017 C&P Exam), the opinion does not address whether the Veteran's post hospitalization complaints of genital itching and rash could be related to the catheterization, as contended by the Veteran. Remand is required to address this contention. With regard to the Veteran's aspiration pneumonia, the Board has considered the July 2017 and August 2017 VA examinations and accompanying opinions, and finds that clarification is required. The July 2017 examiner found it less than likely as not that the additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care. The examiner indicated that from review of the notes, it appears that the attendings orders were consistent with the standard of care for an alcoholic patient's admission to the hospital. The examiner also stated that failure on the part of VA to timely diagnose or properly treat the disease or disability allowed the disease/disability to continue to progress, noting that it wasn't until the Veteran was admitted to the ICU that he was started on antibiotics. It is possible that starting him on empiric antibiotic treatment, which is often the standard of care practiced until source of infection is found, could have prevented the progression of the bilateral pneumonia. The August 2017 VA examination and opinion provides that the Veteran's aspiration pneumonia was acute. However, it was noted that the Veteran has residual asthma and COPD that have caused fibrosis in the lungs as noted on CT and CXR, causing his shortness of breath and dyspnea on exertion and wheezing (08/25/2017 C&P Exam). An addendum is required to clarify whether the Veteran's aspirational pneumonia is resolved, and whether the residual asthma and COPD were caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA between October 23, 2015 and November 6, 2015. Remand to obtain an addendum for clarification is required. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriately qualified clinician for an addendum opinion consistent with this remand. If the following cannot be addressed without an examination, an examination should be scheduled. The examiner must opine whether it is at least as likely as not (at least 50 percent probability) that the Veteran has acquired any additional disability, to include genital infection, rash, and/or itching and bladder and bowel issues, to include incontinence during his hospitalization from October 23, 2015 through November 6, 2015. With regard to bowel and bladder issues, the examiner should specifically address the Veteran's July 2015 complaint of incontinence and nocturia that predates his hospitalization (08/25/2015 CAPRI, pgs. 8 and 11). The examiner should also address various complaints and denials of incontinence since his period of hospitalization. The examiner should address the Veteran's contention that he was catheterized improperly, resulting in an infection and genital itching that has persisted since his hospitalization. The examiner should also address the Veteran's contention that during his hospitalization he was left alone without proper care, resulting genital rash from unchanged adult diapers. If additional disabilities are found, the examiner should address whether they are due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of on the part of the treating departments in furnishing the hospital care, medical or surgical treatment, or examination during his October 23, 2015 to November 6, 2015 hospitalization, to include catheterization. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any injury or event as contended by the Veteran, the examiner should include that information in his remarks. The examiner is reminded to consider the Veteran's lay reports, and a reason must be provided if the Veteran's lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran's contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. The examiner should reconcile any conflicting medical evidence of record to the extent possible. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. 2. Aspiration Pneumonia. Forward the claims file to an appropriately qualified clinician for an addendum opinion consistent with this remand. If the following cannot be addressed without an examination, an examination should be scheduled. The examiner should provide a clarifying addendum opinion as to whether it is at least as likely as not (at least 50 percent probability) that the Veteran has acquired an additional disability to include aspiration pneumonia, residual asthma and COPD during his hospitalization from October 23, 2015 through November 6, 2015. The examiner should clarify whether the Veteran's aspirational pneumonia is resolved, and whether any residual asthma and COPD were caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA between October 23, 2015 and November 6, 2015. The examiner should specifically address whether the Veteran's aspirational pneumonia, residual asthma, and/or COPD are due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of on the part of the treating departments in furnishing the hospital care, medical or surgical treatment, or examination during his hospitalization from October 23, 2015 through November 6, 2015. If the examiner is able to gather additional understanding or information regarding the circumstances surrounding any injury or event as contended by the Veteran, the examiner should include that information in his remarks. The examiner is reminded to consider the Veteran's lay reports, and a reason must be provided if the Veteran's lay reports are rejected. Lay statements cannot be rejected solely due to a lack of medical documentation. If there is a medical reason to accept or not accept the Veteran's contentions, the examiner should provide them. If the absence of medical documentation is relevant, the relevance must be explained because the absence of evidence is not positive evidence of the existence or non-existence of an event. The examiner should reconcile any conflicting medical evidence of record to the extent possible. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Myers, Pamella 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.