Citation Nr: 18149211 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 13-04 579 DATE: November 9, 2018 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 (2012) for a small bowel obstruction and its residuals is remanded. Entitlement to Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 for the period from March 25, 2010 to June 16, 2010 is remanded. REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 for a small bowel obstruction and its residuals is remanded. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. Although the Board sincerely regrets the additional delay, this matter must be remanded for a VA medical opinion. Under 38 U.S.C. § 1151, a claimant may be compensated for a disability or death that results from training, hospital care, treatment or an examination, furnished by VA, as if such disability or death were service-connected. See 38 U.S.C. § 1151; 38 C.F.R. § 3.361 (2017). However, in order to establish entitlement to compensation, there must be a showing of carelessness, negligence, lack of proper skill, error in judgment, a similar instance of fault on the part of VA, or evidence of an event not reasonably foreseeable. There must also be evidence that VA’s hospital care, treatment or examination in question resulted in disability or death. Merely showing that a veteran received care, treatment, or an examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 361(c)(1). In his August 2010 claim, the Veteran alleged that the medication that VA prescribed for his non-service-connected back pain caused bowel problems and, ultimately, a bowel obstruction that required surgery. In his formal Claim for Damage, Injury or Death, dated October 2011, the Veteran’s doctor specified that the Veteran was prescribed Hydrocodone/Vicodin and Acetaminophen in October 2009, and that he took twelve pills per day for sixty days straight until he was admitted to the VA hospital and diagnosed with a small bowel obstruction, acute renal failure, and gangrene of the large and small intestine. The doctor opined that, at the time of prescription, the prescribing doctor knew or should have known that the Veteran had a history of Hepatitis C as well as alcohol abuse and drug abuse, and the doctor should have monitored the Veteran more closely. The Veteran was afforded a VA examination in May 2012, after which the examiner opined that the Veteran’s small bowel obstruction was less likely than not caused by the Veteran’s medication regimen. He explained that, while narcotics are known to cause constipation, there is no evidence in the claims file that the Veteran complained of constipation in the year prior to his bowel surgery. In any event, very few patients develop a bowel obstruction from constipation due to narcotics, even when the dosages are quite high. The examiner concluded that the Veteran has a complicated medical history that includes prostate cancer and chemotherapy that is more likely to have caused or contributed to the bowel obstruction. In its April 2015 decision, the Board noted that the Veteran is service-connected for prostate cancer and, thus, the examiner’s discussion of prostate cancer as a possible cause of the bowel obstruction raised the issue of entitlement to service connection for the small bowel obstruction and residuals as secondary to service-connected prostate cancer. In addition, the examiner’s conclusion that the Veteran’s condition may have been caused by his history of chemotherapy was based on an inaccurate factual premise, as there is no medical evidence that the Veteran underwent chemotherapy. The Board remanded this claim for a new VA examination that would consider the correct facts and the additional theory of entitlement. Unfortunately, this claim must be remanded once again because the VA medical opinions obtained thereafter are inadequate to decide the claim. The Veteran was afforded a new VA examination in May 2016, after which the examiner found that the Veteran’s bowel obstruction and residuals were less likely than not related to the treatment for his service-connected prostate cancer. However, the only rationale provided was that there was no medical evidence that the Veteran underwent chemotherapy. The examiner did otherwise discuss whether there is a possible link between a bowel obstruction and prostate cancer when chemotherapy is not administered. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (an examination report is inadequate if it is conclusory or provides an incomplete analysis); Miller v. West, 11 Vet. App. 345 (1998) (a mere conclusion without an underlying rationale is of no probative value). In December 2016, VA obtained an additional medical opinion to once again consider whether the Veteran’s medication regimen caused his bowel obstruction. In finding that it was less likely than not that any such link existed, the VA examiner opined that there is no documentation showing that the Veteran complained of or was treated for constipation in the year prior to his surgery. However, at the Veteran’s May 2018 hearing before the Board, the Veteran testified that he did, in fact, experience constipation during that time. Specifically, he said that he complained to his doctor about constipation, and he was prescribed a stool softener and laxatives as a result. Also, he was administered enemas and he drank prune juice. In light of this, a new VA examination is required to consider the Veteran’s competent lay statements and the related medical evidence showing that the Veteran did experience constipation in the year prior to his bowel obstruction. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (critical pieces of information from a veteran’s medical history can lend credence to the opinion of a medical expert who considers them and detract from the medical opinions of experts who do not). Entitlement to SMC under 38 U.S.C. § 1114 for the period from March 25, 2010 to June 16, 2010 is remanded. This matter comes to the Board on appeal from a July 2012 rating decision that granted the Veteran’s claim for SMC on the basis of housebound status for the period from June 16, 2010 to September 1, 2010. In a June 2010 claim for SMC for Aid and Attendance under 38 U.S.C. § 1114(l), the Veteran’s wife explained that, in March 2010, the Veteran was released from the hospital following surgery for his bowel obstruction, and she had to care for his daily needs. In granting SMC on the basis of housebound status under 38 U.S.C. § 1114(s), the regional office (RO) explained that, as of June 16, 2010, the Veteran met the minimum schedular requirements for this benefit during his period of temporary total evaluation for prostate cancer and once his evaluation for PTSD and other service-connected disabilities was increased to 60 percent. In his September 2012 Notice of Disagreement, the Veteran insisted that this benefit should be effective as early as March 2010, when he was housebound following his release from the hospital. At his January 2015 hearing before the Board, the Veteran indicated, also, that he was in need of aid and attendance during this period. In its April 2015 decision, the Board reframed the issue as one of entitlement to SMC for the period from March 25, 2010 to June 15, 2010 (rather than as a claim for an earlier effective date for this benefit). SMC may be granted under 38 U.S.C. § 1114(l) if a veteran, as a result of a service-connected disability, is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. SMC may be granted under 38 U.S.C. § 1114(s) if a veteran has a service-connected disability rated as total and (1) has additional service-connected disabilities or disabilities independently ratable at 60 percent or more, or (2) by reason of such disability or disabilities, is permanently housebound. For the purpose of this section, a veteran is considered “permanently housebound” if he is substantially confined to his house or immediate premises due to a service-connected disability or disabilities, and it is reasonably certain that the disability or disabilities and confinement will remain throughout the veteran’s lifetime. 38 C.F.R. § 3.351(d)(2). Here, the Veteran was assigned an effective date of June 16, 2010 for SMC based on housebound status because that is the date that he met the statutory requirements for an SMC under 38 U.S.C. § 1114(s), as specified above. The Veteran has consistently reported that he was housebound and that he required aid and attendance from March 25, 2010 because of his surgery for a bowel obstruction caused by the medication regimen he was prescribed for his back pain. His back disorder is not service-connected and, thus, it cannot form the basis of entitlement for SMC. However, the Veteran’s claim under 38 C.F.R. § 1151, remanded pursuant to the discussion above, raises the possibility that his bowel obstruction was caused by his service-connected prostate cancer or his medication regimen for PTSD and other service-connected disabilities. If granted, that claim could provide a basis for an award of SMC for the period from March 25, 2010 to June 16, 2010. Accordingly, the Board finds that the issue of entitlement for SMC for this period is inextricably intertwined with the aforementioned claim that is being remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 185 (1991). Thus, this issue must also be remanded. These matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician that discusses the following: (a.) Whether the Veteran’s bowel obstruction in 2009 is at least as likely as not related to or caused by his service-connected prostate cancer. (b.) Whether it is as least as likely as not that the Veteran’s 2009 bowel obstruction was (1) caused by or became worse as a result of VA treatment (specifically, the Veteran’s prescribed medication regimen), (2) that it resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel, (3) that it resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or (4) that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The clinician is instructed to consider all of the medications prescribed to the Veteran at that time and to specifically indicate which, if any, caused the bowel obstruction. The clinician is further instructed to consider the Veteran’s competent lay statements and supporting medical evidence that he experienced constipation in the year prior to his bowel obstruction. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel