Citation Nr: 1806131 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-23 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318. 3. Entitlement to service-connected burial benefits. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and D.P.T. ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1991. He died in March 2013, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant testified at a hearing before the undersigned Veterans Law Judge in August 2015. A transcript of that proceeding is associated with the record. In February 2016, the Board remanded the case in order for the RO to adjudicate the threshold question of whether the appellant was entitled to recognition as the Veteran's surviving spouse for purposes of VA benefits. In an August 2016 administrative decision, the RO recognized the appellant as the Veteran's surviving spouse. The case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. The Board notes that additional medical records have been associated with the claims file since the August 2016 supplemental statement of the case for which there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) consideration. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The appellant has contended that the Veteran's service-connected impairment of anal sphincter control and hemorrhoids caused or contributed to his death. See, e.g., July 2013 notice of disagreement; August 2015 Board hearing transcript, at 4. In this regard, she has asserted that the Veteran failed to thrive as a result of his symptoms of fecal incontinence, weight loss, dehydration, and malnutrition. Alternatively, the appellant has asserted that the Veteran's in-service hemorrhoidectomy and sphincter trauma caused damage to his neurological system and resulted in dementia. See, e.g., July 2013 notice of disagreement. The Veteran's original death certificate listed the immediate cause of death as complications of dementia. The Board notes that the original death certificate was signed by the Veteran's treating physician, Dr. N.T. (initials used to protect privacy). The appellant also submitted an amended death certificate, which listed the Veteran's immediate causes of death as failure to thrive related to rectal surgery with sphincter damage and dementia with psychosis. The amended death certificate was completed and signed by a nurse practitioner from the Veteran's primary care team, C.W. At the time of the Veteran's death, service connection was established for impairment of anal sphincter control and hemorrhoids. The Veteran was also in receipt of special monthly compensation based on the need for regular aid and attendance. Historically, during a November 2009 VA examination, the Veteran complained of leakage of stool that did not require the use of a pad. A rectal examination revealed partial loss of sphincter control and external hemorrhoids. The examiner stated that the Veteran's rectum condition did not cause significant anemia and that there was no evidence of malnutrition. She also stated that the Veteran had dementia that was not related to his claimed disorders. A January 2011 VA urology record noted an assessment of dementia and resultant fecal/urinary incontinence. However, a VA urologist also indicated that the Veteran's previous hemorrhoid surgery affected his sphincter function and may have contributed to his fecal incontinence. In an August 2011 VA surgical consultation, the appellant reported that the Veteran's fecal incontinence had its onset in 2005. A VA colorectal surgeon opined that the Veteran's fecal incontinence was likely multifactorial with dementia playing a role. He also stated that it was possible that the Veteran's in-service surgery played a role. However, he indicated that he could not accurately determine by history of the Veteran's complaints whether he was aware that he needed to defecate. In a February 2012 VA medical opinion, the examiner opined that the Veteran's loss of sphincter control was likely related to his in-service hemorrhoidectomy with sphinecterotomy. He further stated that the loss of sphincter control was aggravated by time progression, Alzheimer's, and schizophrenia. It was noted that those conditions affected the Veteran's central control and caused his fecal incontinence to worsen. In a December 2012 VA aid and attendance examination, the VA examiner diagnosed the Veteran with dementia and psychotic disorder. He opined that the Veteran's urinary and fecal incontinence was at least as likely as not related to his dementia and Pick's disease. In so doing, he stated that the Veteran required nursing care because his dementia caused him to be unable to attend to the wants of nature. The February 2012 and December 2012 VA medical opinions were provided by the same VA examiner. In an August 2013 medical statement, C.W., the nurse practitioner who signed the Veteran's amended death certificate, stated that the Veteran's failure to thrive related to his history of rectal surgery with sphincter damage and resulting "leaking of stool," as well as his psychosis and dementia caused his decline and eventually his death. However, C.W. provided no supporting rationale for her opinion. In a March 2014 VA medical opinion, the examiner provided a negative opinion regarding the cause of the Veteran's death. In so doing, he noted that the Veteran's death certificate only identified complications of dementia as the cause of death. The examiner acknowledged the August 2013 statement from C.W. However, he opined that it was less likely than not that the Veteran's service-connected hemorrhoids and rectal surgery caused any significant stool incontinence. Rather, he stated that the Veteran's stool incontinence was more likely than not due to his dementia. In so finding, the examiner noted that the Veteran's digital rectal examination was normal 14 years after his rectal surgery. In addition, he explained that rectal incontinence related to surgery manifests shortly thereafter and noted that a November 2009 VA medical record indicated that the Veteran had only minimal stool leakage. The examiner further explained that dementia is a well-known cause of urinary and stool incontinence. In light of the foregoing, the Board finds that a remand is necessary to obtain an additional VA medical opinion to clarify the cause of the Veteran's death. As discussed above, there is conflicting evidence as to whether the Veteran's service-connected disabilities caused or contributed to his death and whether his symptoms of fecal incontinence were attributable to his service-connected disabilities. The Board notes that the medical opinions provided in the July 2011 and August 2011 VA medical records were speculative in nature. In addition, although the December 2012 VA examiner opined that the Veteran's urinary and fecal incontinence were at least as likely as not related to dementia and Pick's disease, he did not reconcile his conclusion with his February 2012 medical opinion. Moreover, in support of his negative nexus opinion regarding the cause of the Veteran's death, the March 2014 VA examiner noted that a digital rectal examination performed 14 years after the Veteran's separation from service was normal. However, he did not explain the relevance of this finding or address the subsequent VA medical evidence that noted abnormal rectal examination findings, such as the November 2009 VA examination. In addition, the examiner did not fully address whether the Veteran's service-connected disabilities were a contributory cause of his death. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271(1998). The Board also notes that the issue of entitlement to service-connected burial benefits is inextricably intertwined with the claim for service connection for the cause of the Veteran's death. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue. In addition, the Board notes that the VA medical records currently associated with the claims file were largely submitted by the appellant, and it is unclear whether the medical records are complete. Therefore, the AOJ should obtain any outstanding VA medical records. Lastly, in the June 2013 rating decision, the RO considered the issue entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C. § 1318 when it denied the claim for service connection for the cause of death. In her July 2013 notice of disagreement, the appellant's representative stated that she disagreed with the rating decision regarding her claim for DIC, which could be liberally construed as disagreement with the denial of DIC under the provisions of 38 U.S.C. § 1318. However, the RO did not address this matter in the March 2014 statement of the case. Therefore, a remand is necessary. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that where a claimant has submitted a notice of disagreement, but a Statement of the Case has not yet been issued, a remand to the RO is necessary). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who treated the Veteran prior to his death that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any VA medical records from the Hampton VAMC. 2. After completing the foregoing development, the AOJ should refer the claims file to a suitably qualified VA examiner for a medical opinion to address the cause of the Veteran's death. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and the appellant's assertions. The appellant has asserted that the Veteran's service-connected impairment of anal sphincter control and hemorrhoids caused or contributed to his death. She has also contended that the Veteran's dementia was secondary to his service-connected impairment of anal sphincter control and hemorrhoids. Specifically, the appellant has asserted that the Veteran's in-service hemorrhoidectomy and sphincter trauma caused damage to his neurological system which resulted in dementia. The examiner should note that the appellant is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected impairment of anal sphincter control and hemorrhoids caused his death; contributed substantially or materially to his death; combined with another disorder to cause his death; or, aided or lent assistance to his death. In so doing, the examiner should also clarify whether the Veteran's symptoms of fecal incontinence were attributable to his service-connected disabilities. In rendering this opinion, the examiner should address whether the Veteran's service-connected disabilities affected a vital organ, thus hastening his death. He or she should also address whether the Veteran's service-connected disabilities resulted in debilitating effects and general impairment of health to an extent that would render the Veteran materially less capable of resisting the effects of any dementia that may have caused his death. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's dementia was either caused by or aggravated by his service-connected impairment of anal sphincter control and hemorrhoids. In rendering this opinion, the examiner should address the appellant's contention that the Veteran's sphincter trauma caused damage to his neurological system which in turn resulted in dementia. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be readjudicated. If the benefits sought are not granted, the appellant and her representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 5. The AOJ should issue a statement of the case addressing the issue of entitlement to DIC under the provisions of 38 U.S.C. § 1318. Thereafter, the appellant should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the appellant that the claims file will not be returned to the Board for appellate consideration of this issue following the issuance of the statement of the case unless she perfects her appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ J.W. ZISSIMOS 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).