Citation Nr: 1800848 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 11-30 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent, and a disability rating in excess of 30 percent from December 9, 2016, for fecal stress incontinence. 2. Entitlement to service connection for neurovascular bundle of the rectum, to include as secondary to service-connected adenocarcinoma of the prostate, status post radical retropubic prostatectomy. ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to December 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2010 and June 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Veteran filed a claim for service connection for neurovascular bundle of the rectum as secondary to adenocarcinoma of the prostate, status post radical retropubic prostatectomy. In a December 2012 letter, the RO informed the Veteran the issue of service connection for neurovascular bundle of the rectum would not be considered as a separate issue because it is intertwined with the appeal for an increased disability rating for fecal stress incontinence, as both are evaluated under the same rating criteria. However, in a June 2015 rating decision the RO, in relevant part, denied the claim of service connection for a neurovascular bundle as a separate issue, and in July 2015 the Veteran submitted a notice of disagreement with that decision. The Board finds that to clarify any confusion this may have caused the Veteran, the issue of entitlement to service connection for neurovascular bundle of the rectum is intertwined with the appeal for increased disability ratings for fecal stress incontinence, and accordingly that issue is also currently before the Board. In June 2017, the Veteran perfected appeals as to the eight issues of entitlement to service connection for gastroesophageal reflux disease, bile duct stenosis, bilateral thyroid lesions, liver periportal inflammation with eosinophils, bilateral renal cysts, cholelithiasis, gout, and hypertension. The Board acknowledges that appeals as to these issues have been perfected, but they have not yet been certified to the Board. In July 2015 the Veteran submitted notices of disagreement with 16 service connection claims, other than the claim for neurovascular bundle discussed above. The Board's review of the evidentiary record reveals that the AOJ is still taking action on all 24 of these appellate issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND A November 2011 treatment record from Dr. H.J.J. appears to indicate the Veteran was using pads for both urinary and fecal incontinence at that time, and that he was referred to another physician for a possible rectal prolapse regarding his problems with fecal control. A November 2011 treatment note from Colon & Rectal Specialists noted the Veteran's report of waking up to some seepage in his undershorts, but no rectal bleeding. The physician's impressions included a history of some mild anorectal prolapse of tissue, and radiation-induced damage/trauma to the neurovascular bundle of the rectum. The Veteran was afforded a QTC anus and rectum examination in December 2016. The examiner indicated the Veteran's records were not reviewed. The examiner reported the signs or symptoms of the Veteran's service-connected fecal stress incontinence included impairment of rectal sphincter control, however the examiner did not discuss any history of, or current, rectal prolapse, and/or any damage to the Veteran's neurovascular bundle of the rectum. Accordingly, on remand, the AOJ should ask the Veteran to identify any updated non-VA treatment records regarding his fecal stress incontinence, rectal prolapse, and/or damage to the neurovascular bundle of the rectum, and then obtain any identified treatment records. The AOJ should then afford the Veteran a new VA examination to determine the current severity and manifestations of the Veteran's service-connected fecal stress incontinence, to include consideration of any rectal prolapse, and to determine the nature and etiology of the damage to the neurovascular bundle of the rectum, to include whether it is also secondary to the service-connected adenocarcinoma of the prostate, status post radical retropubic prostatectomy. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify all updated private treatment related to his fecal stress incontinence, rectal prolapse, and/or damage to the neurovascular bundle of the rectum. The AOJ should undertake appropriate development to obtain any outstanding treatment records, to include any updated treatment records from Dr. R.E.H., Dr. H.J.J., Virginia Urology, and Colon & Rectal Specialists. When contacting the Veteran to obtain any necessary releases, the AOJ should provide the full names of Dr. R.E.H. and Dr. H.J.J. as identified in the March 2015 VA Forms 21-4142 to aid the Veteran in identifying these records. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, the AOJ should advise the Veteran of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. The AOJ should obtain any outstanding VA treatment records, to include from the Richmond VA Medical Center from June 2017 to the present. All obtained records should be associated with the evidentiary record. 3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the current severity of his service-connected fecal stress incontinence, and the nature and etiology of the damage to the neurovascular bundle of the rectum. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. A complete history should be elicited directly from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) The examiner should address the current manifestations and severity of the fecal stress incontinence. b) The examiner is asked to specifically address any rectal prolapse throughout the appeal period, to include the November 2011 findings of seepage related to a rectal prolapse in the Veteran's private treatment records. c) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's damage to the neurovascular bundle of the rectum was caused by his service-connected adenocarcinoma of the prostate, status post radical retropubic prostatectomy? The examiner should specifically address the November 2011 notation regarding radiation-induced damage/trauma to the neurovascular bundle of the rectum in the Veteran's private treatment records. d) Is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's damage to the neurovascular bundle of the rectum is aggravated by his service-connected adenocarcinoma of the prostate, status post radical retropubic prostatectomy? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The complete rationale for all opinions should be set forth. 4. After the above development has been completed, readjudicate the claims. If either benefit sought remains denied, provide the Veteran with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).