Citation Nr: 18156859 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-59 876 DATE: 1. Whether new and material evidence has been received to reopen a claim of entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence. 4. Entitlement to service connection for depression, to include as secondary to a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence. 5. Entitlement to service connection for surgical scars as secondary to a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence. December 11, 2018 ORDER New and material evidence has been received and the claim of entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is reopened. Entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is granted. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is remanded. Entitlement to service connection for depression, to include as secondary to a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is remanded. Entitlement to service connection for surgical scars associated with a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is remanded. FINDINGS OF FACT 1. In an unappealed January 2006 rating decision, the RO denied a claim of entitlement to compensation under 38 U.S.C. § 1151 for digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence. A medical opinion asserting the Veteran’s short bowel syndrome was directly due to substandard care at a VA facility was received following the January 2006 rating decision and is neither cumulative nor redundant of the evidence at the time of the January 2006 rating decision and assuming its credibility raises a reasonable possibility of substantiating the claim. 2. The evidence is in equipoise as to whether the Veteran’s digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, was not reasonably foreseeable; and said digestive disability was as likely as not the result of negligence or other deviation from the standard of care during his August 2004 treatment at the Houston VAMC. CONCLUSIONS OF LAW 1. The January 2006 rating decision denying a claim of entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is final and the evidence received subsequent to the rating decision is new and material to reopen a claim of entitlement to compensation under 38 U.S.C. § 1151 for digestive conditions, also claimed as peritonitis, short bowel syndrome and incontinence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (1), 3.303, 20.1105 (2017). 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, have been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1972 to February 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In his November 2017 substantive appeal, the Veteran requested a Board videoconference hearing. The Board notes that the Veteran’s representative withdrew the request for a hearing in a December 2018 statement in support of claim. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2017). In August 2018, VA received the Veteran’s signed Rapid Appeals Modernization Program (RAMP) Opt-In Election form, selecting the supplemental claim option. The Board notes that the Veteran’s representative waived the Veteran’s election into ramp in a December 2018 statement in support of claim, citing terminal illness. Under these circumstances, the Board considers the Veteran’s election to Opt-In to RAMP as withdrawn and will proceed accordingly. 1151 Eligibility The Veteran asserts entitlement to benefits under 38 U.S.C. § 1151 for digestive conditions, also claimed as peritonitis, short bowel syndrome and incontinence, that occurred after surgery at a VA facility. By way of procedural history, the Veteran’s initial claim for benefits under 38 U.S.C. § 1151 for this particular disability was denied in an unappealed January 2006 rating decision. In a May 2010 rating decision, the RO declined to reopen the Veteran’s claim for entitlement to benefits under 38 U.S.C. § 1151. The Veteran appealed the matter and, in a June 2017 rating decision, the RO reopened the claim for benefits under 38 U.S.C. § 1151 and again denied it on the merits. 1. Whether new and material evidence has been received to reopen a claim of entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a February 2017 letter, a staff oncologist at the VAMC in Muskogee, proffered an opinion that the Veteran ‘s short bowel syndrome was due to substandard care the Veteran received at the Houston VAMC in August 2004. The Board finds that this medical evidence was not previously submitted to VA before the January 2006 rating decision and is therefore “new” evidence. The Board will now turn to a discussion of whether this new evidence is “material.” The evidence received subsequent to the January 2006 rating decision is a medical opinion that alleges the Veteran’s short bowel syndrome was the direct result of substandard care received at the Houston VAMC. The Board finds that, assuming its credibility for purposes of deciding whether to reopen the claim, this medical opinion constitutes new and material evidence to reopen the claim for benefits under 38 U.S.C. § 1151 for digestive conditions, also claimed as peritonitis, short bowel syndrome and incontinence. This new evidence addresses the requirement that the evidence must establish that the Veteran sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. Therefore, this new evidence is material and the Veteran’s claim for benefits under 38 U.S.C. § 1151 for digestive conditions, also claimed as peritonitis, short bowel syndrome and incontinence, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Entitlement to compensation under 38 U.S.C. § 1151 for a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service connected. For purposes of this section, a disability is a qualifying additional disability if the disability was not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. Section 1151 contains two causation elements; the disability must not only have been caused by the hospital care or medical treatment but it must also be proximately caused by VA's fault. See, Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (2013). In order for the appellant to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability of the Veteran; the claim for compensation under 38 U.S.C. § 1151 must be denied. In determining whether a Veteran has an additional disability, VA compares the Veteran's disability immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's disability after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361 (b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). An additional disability caused by the Veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361 (c)(3). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. 38 C.F.R. § 3.361 (d)(1). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). An August 26, 2004 VA treatment record notes the Veteran "had a large midline abdominal wall hernia" and "recurrence [of colon adenocarcinoma] at the anastamosis without evidence of other disease." A subtotal colectomy and an ileorectal anastamosis were performed. The midline was reapproximated with interrupted figure of 8, #1 ethibond sutures and two JP drains were placed subcutaneously in the dead space created by mobilizing the midline fascia. It was noted that the Veteran tolerated the procedure well. An August 26, 2004 VA treatment record notes the Veteran was resting comfortably in bed after his surgery and that the pain was well controlled with patient-controlled analgesia. An August 27, 2004 VA treatment record notes the Veteran got up and walked around. It was noted that the Veteran was encouraged to ambulate to prevent atelectasis and was doing well. An August 28, 2004 VA treatment record notes the Veteran was without complaints and that the pain was well controlled. Fever was noted. An August 29, 2004 VA treatment record notes the Veteran was without complaints and ambulating without difficulty. It was noted that they were still awaiting bowel function. An August 29, 2004 VA nursing reassessment record notes the Veteran was “[d]iaphoretic on the forehead” and his abdomen was tender and firm to touch with no bowel sounds. Pain in the abdomen due to gas formation was noted. It was noted that the Veteran was “very uncomfortable and wants to do something to remove the pressure from the abdomen.” An August 30, 2004 VA nursing reassessment record notes that at 8 pm the prior evening the Veteran was sitting in a chair and reported that he had a bowel movement and that his abdomen is not distended anymore. It was noted that his incision site “looks a little red, but his abdomen looked flat with no distention. It was noted that at 10:45 pm he had just had another bowel movement and reported sudden pain (scale # 10) on his left upper quad. The Veteran was still having pain at 11:15 pm and at 12:54 am it was noted that the Veteran was having chills. An August 30, 2004 VA treatment record notes the doctor was called to the Veteran’s bedside after complaints of abdominal pain after a bowel movement. It was noted that the Veteran has cramping muscle pain in all four quadrants, with the lower left quadrant having the strongest pain. The Veteran further reported nausea but no vomiting. Guarding, but no rebound tenderness was noted. The doctor stated a plan to place a nasogastric and a Foley, give intravenous abdominal antibiotics and resuscitate the Veteran in SICU, after which he would be assessed clinically for a laparotomy or a CT scan. The doctor noted that “[i]t would be unusual for a leak or an abscess to appear this early”. An August 30, 2004 VA nursing reassessment record notes the Veteran was transferred to SICU due to dehydration and sudden, severe post-operative pain. An August 30, 2004 VA treatment record notes the Veteran had severe abdominal pain with fever and low urinary output, and was transferred to SICU for resuscitation and closer monitoring. The Veteran reported difficulty breathing secondary to his pain, which was noted as moderately controlled with morphine. It was noted that the Veteran had 3 bowel movements the prior day and was occasionally nauseated. An August 30, 2004 VA treatment record notes the Veteran developed acute onset of abdominal pain with fever and tachycardia. An abdominal CT scan demonstrated a dilated small bowel at the anastamosis with free fluid in the abdomen. Upon physical examination, lower abdominal tenderness with rebound was noted. Anastamotic disruption was listed as the concern and an exploratory with possible ileostomy was planned. It was noted that the risks and benefits were discussed with the Veteran and his wife, who understood and consented to the procedure. An August 30, 2004 VA general surgery record notes the Veteran had a disruption of the anastamosis with free fluid in the abdomen. The anastamosis was taken down, the rectal stump was oversewn in two layers, and the distal small bowel was resected. A vicryl mesh was placed as the abdomen could not be closed primarily. It was noted that the Veteran tolerated the procedure and was transferred to the SICU in stable disability. A September 1, 2004 VA treatment record notes the Veteran was extubated and had "[n]o major complaints." A September 2, 2004 VA treatment record notes the Veteran was doing well with no complications overnight. He was tolerating a half cup of ice per shift and "want[ed] more to eat." A September 3, 2004 VA treatment record notes the Veteran was doing well and that his ileostomy was functioning with no leakage. A September 4, 2004 VA treatment record notes the Veteran had difficulty sleeping the prior night, but was otherwise doing well with minimal pain. A September 9, 2004 VA treatment record notes the Veteran was without complaints and desired to go back to Oklahoma. It was noted that his wound was continuing to heal and that the plan was to transfer him to the Muskogee VAMC. An October 2004 VA discharge summary notes the Veteran had a "difficult course since colon cancer resection and postoperative complications of peritonitis that has left him with an open abdominal wound and massive amounts of drainage from his ileostomy on a daily basis." A diagnosis of dumping syndrome due to short bowel syndrome was noted. An April 2005 VA treatment record notes the Veteran had a procedure performed at the Houston VAMC which left him with a large abdominal wall defect and short bowel syndrome. It was further noted that on March 22, 2005 he underwent a takedown ileostomy with adhesiolysis, reversal of Hartmann's procedure that was complicated by a large ventral defect and reanastomosis with closure of small bowel at the distal Hartmann's pouch and allograft to the wound. The Board finds that the fact of short bowel syndrome subsequent to the surgery performed at a VA facility in August 2004 is established by competent medical evidence. See, e.g., October 2004 VA treatment record. The remaining issues then are whether (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; and (ii) whether any such deviation from the standard of care caused the Veteran's short bowel syndrome. 38 C.F.R. § 3.361 (c) and (d). In a March 2010 letter, the Veteran stated that around the end of August 2004 he was sent to DeBaky VAMC to have his colon removed and that two days after the operation he experienced complications and informed a nurse that he thought he had peritonitis. The Veteran then stated that the nurse "laugh[ed] and walked away." The Veteran stated that he continued to complain about the pain and he was seen by two student doctors who "didn't do much of anything." He then stated that, roughly 24 hours after he first complained of the pain, he was swollen with fluid "and near death". The Veteran stated that when he was finally operated on to repair the peritonitis he lost most of his small intestines and was left with a "basketball size hole in [his] middle]" and had to use a colostomy bag. In a May 2010 letter, the Veteran stated that he complained of suspected peritonitis "until loss of [consciousness]" and was "ignored for 13 hours" until he was swollen and near death and asserted that this led to the loss of 22 to 25 feet of small intestine and a hole in his abdomen the "approximate diameter of a basketball". The Veteran then asserted that this "constitut[ed] carelessness, negligence, lack of proper skill, or error in judgment." The Veteran stated that "around 13:00" on August 29, 2004, he first noticed pain and profuse sweating on his forehead, and that his morphine IV drip had no effect on the pain. The Veteran stated that he had peritonitis a few years prior and stated pain and heavy sweat on the forehead are the first symptoms. He then stated that he informed the ward RN of his suspicion, and that she laughed and walked away. He stated that he kept complaining and around 18:00 a new RN reported that he was "very uncomfortable " due to gas and when a doctor returned he ordered a suppository and an enema. The Veteran stated that the nurse was told that he believed he had peritonitis. At around 19:00, two medical students attended to him. The Veteran stated that after about 12 hours of telling everyone he had peritonitis a doctor came to examine him and ordered him to the "SICU to be resuscitated and either a CT scan or to OR for laporoscopy." The Veteran stated that at 02:15 he was transferred to SICU in much pain, high temperature and heart rate and, at 12:03, he was given a CT scan which confirm peritonitis. The Veteran stated that he was operated on well after 24 hours of onset of symptoms, leaving him with only three feet of small bowel, with only ten inches between the stomach and stoma, none of which was related to Muskogee VAMC and leading to later problems. The Veteran stated that on September 10 he was transferred to Muskogee VAMC. The Veteran stated that he was admitted numerous time afterwards with numerous problems stemming from his lack of intestines. The Board notes that the Veteran is not competent to provide an opinion as to whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault or whether any such failure to meet the standard of care resulted in short bowel syndrome. Any such opinion would require detailed knowledge, training, and/or experience with respect to post-surgical care and the causes of abdominal hernias. See, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple disability such as a broken leg, but not competent to provide evidence as to more complex medical questions). In expressing an opinion as to cause and negligence, the Veteran is not reporting readily apparent symptoms (rather he is providing lay opinion on the cause of observable symptoms), nor is he reporting a contemporaneous medical diagnosis or describing symptoms that were later diagnosed by a medical professional. See, Jandreau, 492 F.3d at 1377. Furthermore, the Veteran has not demonstrated he has knowledge of the acceptable medical practices in diagnosing and treating abdominal hernias (or in providing post-operative care generally) such that his statements would be competent, nor has he indicated that the failure in the standard of care was such that it would be readily apparent to a layperson (e.g., amputating the wrong extremity). See OGCPREC 05-01 (noting that generally, determinations as to whether a physician's diagnosis, treatment or procedures for arriving at a diagnosis or course of treatment conform to ordinary standards of medical care generally present matters outside the ordinary knowledge of laypersons and therefore must be shown by medical evidence). His testimony is not competent evidence of negligence in the circumstances of this case. Likewise, the Board is not competent, under the facts of this case, to determine the medical standard of care without reference to the opinion of competent medical professional. See, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding the Board may not make medical determinations). Whether the Veteran's VA medical professionals met the standard of care is a question that requires competent medical evidence to resolve. In a February 2017 letter, a staff oncologist at the VAMC in Muskogee stated that the Veteran underwent a total abdominal colectomy, ventral hernia repair and revision of scar at the Houston VAMC on August 26, 2004, after which he developed complications and was taken back for emergency surgery on August 30, 2004 with findings of a disruption of posterior ileoproctostomy anastomosis, which led to an exploratory laparotomy, drainage of an intraabdominal abscess, resection of ileoproctostomy, small bowel resection, closure of rectal stump, washout of abdomen, loop ileostomy and mesh closure of anterior abdominal wall. The staff oncologist stated that these resulted in short bowel syndrome, and that during the 6 months after his transfer back to the VAMC in Muskogee, the Veteran was admitted on 7 occasions due to complications of his short bowel syndrome and sepsis which, he stated, were unexpected outcomes to the care received at the Houston VAMC. The staff oncologist then stated that it is his opinion that these were unexpected outcomes to the care received at the Houston VAMC. It was then noted that on March 22, 2005, the Veteran was returned to surgery for a takedown ileostomy, adhesionalysis, reversal Hartman’s procedure complicated by large ventral hernia defect requiring extensive closure and anastomosis of short bowel to distal Hartman pouch. The doctor then opined that the Veteran received substandard care for an anastomotic leak from the surgery performed at the Houston VAMC and that his short bowel syndrome is a direct result of the substandard surgical care he received at the Houston VAMC and is not a natural progression of treatment required for recurrent colon cancer. VA obtained a medical opinion in May 2017. The examiner reviewed the Veteran’s claims file and stated that the claimed disability of digestive disability and/or short bowel syndrome was caused by or became worse as a result of the VA treatment at issue, but opined that it is less likely than not that the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, noting that operative notes from August 30, 2004 “indicate [the] procedure was technically tedious and making an ileostomy loop was difficult due to edema of intestinal wall and concurrent infection at the time. Circumstances at the time of surgery were unfavourable and resulted in undesirable complications afterwards, due to [the] nature of [the] pathology and difficult surgical conditions not necessarily due to negligence (emphasis added).” The examiner then opined that it is less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, noting that it is common medical knowledge that intestinal anastomosis leak may occur due to a variety of reasons, including infection and ischemia near suture lines and that “[s]uch event may not be foreseen by a healthcare provider.” The examiner further noted that circumstances of infection, tissue edema and morbid patient condition made circumstances unfavorable for the attending personnel to foresee that a second surgery may cause further complications. Finally, the examiner opined that it is less likely than not that failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to progress, noting that in July 2004, the Veteran was presented to the tumor board in Muskogee, the opinion of which was that the Veteran may require total colon resection and that the initial surgery resulted in anastomosis leak, which was recognized and treated appropriately at the time of the second laparotomy. Here, the Board notes that both the February 2017 letter from the VA staff oncologist and the opinion of the May 2017 VA examiner, though reaching opposite conclusions, have both provided rationales that are equally convincing of the conclusion reached. Furthermore, the Board notes that the May 2017 VA examiner’s use of the phrase “not necessarily due to negligence” does not conclusively foreclose on the VA staff oncologist’s conclusion that the Veteran’s short bowel syndrome was in fact caused by substandard medical care on the part of the VAMC Houston, dwelling more in the realm of the “as likely as not” standard. Moreover, the Muskogee VAMC staff oncologist was direct and adamant in the belief that the complications that resulted were not reasonably foreseeable. In light of the above, the Board finds that the competent medical evidence of record is in relative equipoise and that the Veteran incurred additional disability following his treatment at the Houston VAMC in August 2004 that was not reasonably foreseeable and/or that it was the result of a sub-standard of care. As such, the benefit of the doubt rule is therefore for application. See, 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, to include as secondary to a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is remanded. The Board cannot make a fully-informed decision on the issue of erectile dysfunction because no VA examiner has opined whether the Veteran’s erectile dysfunction is related to his service or the additional disability he sustained due to his August 2004 surgery at the Houston VAMC. 2. Entitlement to service connection for depression, to include as secondary to a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is remanded. The Board cannot make a fully-informed decision on the issue of depression because no VA examiner has opined whether the Veteran’s depression is related to his service or the additional disability he sustained due to his August 2004 surgery at the Houston VAMC. 3. Entitlement to service connection for surgical scars associated with a digestive disability, also claimed as peritonitis, short bowel syndrome and incontinence, is remanded. The Board cannot make a fully-informed decision on the issue of surgical scars because no VA examiner has opined whether the Veteran’s surgical scars are related to his service or the additional disability he sustained due to his August 2004 surgery at the Houston VAMC. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from April 2017 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any erectile dysfunction. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine as to whether it is at least as likely as not (1) proximately due to the additional disability he sustained due to his August 2004 surgery at the Houston VAMC, or (2) aggravated beyond its natural progression by the additional disability he sustained due to his August 2004 surgery at the Houston VAMC. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any depression disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine as to whether it is at least as likely as not (1) proximately due to the additional disability he sustained due to his August 2004 surgery at the Houston VAMC, or (2) aggravated beyond its natural progression by the additional disability he sustained due to his August 2004 surgery at the Houston VAMC. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any surgical scars. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine as to whether it is at least as likely as not (1) proximately due to the additional disability he sustained due to his August 2004 surgery at the Houston VAMC, or (2) aggravated beyond its natural progression by the additional disability he sustained due to his August 2004 surgery at the Houston VAMC. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 5. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel