Citation Nr: A20008748 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 190920-34704 DATE: May 18, 2020 ORDER Entitlement to secondary service connection for Ogilvie’s syndrome, status post bowel resections and ileostomy, is granted. From October 6, 2017, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s Ogilvie’s syndrome is proximately due to his prostate cancer. 2. From October 6, 2017, the Veteran’s service-connected prostate cancer has rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to secondary service connection for Ogilvie’s syndrome, status post bowel resections and ileostomy, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.3. 2. From October 5, 2017, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1968 to July 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran submitted a notice of disagreement (NOD) in the legacy appeals system, and in September 2019, the RO issued a Statement of the Case (SOC). In October 2019, the Veteran withdrew the issues from the legacy appeals process via a NOD, or VA Form 10182, which elected direct review by a Veterans Law Judge under the Appeals Modernization Act (AMA). Accordingly, the Board’s current review is limited to the evidence of record at the time of the Agency of Original Jurisdiction’s (AOJ’s) September 2019 SOC. The Board notes that the AOJ has determined that new and material evidence had been received to reopen his previously denied claim for an intestinal condition, and the Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.301. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The instant decision awards service connection for the Veteran’s Ogilvie’s syndrome, which renders him anemic and requires the assistance of his spouse for activities of daily living and an aide for providing intravenous nutrition each night. See March 2019 Lay Statement by Veteran’s Spouse; see also March 2019, April 2019 VA Treatment Records; see also August 2019 Letter From Dr. M.J. He is encouraged to file a claim for special monthly compensation based on aid and attendance with the assistance of his representative on the appropriate VA-promulgated form. 1. Entitlement to secondary service connection for Ogilvie’s syndrome, status post bowel resections and ileostomy, is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As secondary service connection under 38 C.F.R. § 3.310(a) is warranted for an intestinal condition, the Board need not address direct service connection. Here, the Veteran has a current diagnosis of Ogilvie’s syndrome, status post bowel resections and ileostomy. See July 2017 Private Treatment Record; see also August 2017, October 2017 VA Treatment Records; see also March 2018 Intestinal Condition Disability Benefits Questionnaire (DBQ); see also December 2017 Prostate Cancer DBQ. The Veteran is was granted service-connected for prostate cancer in June 2010. See June 2010 Rating Decision. Therefore, the first two elements of secondary service connection are satisfied. Regarding the last element, nexus, there is evidence in favor of and against the claim. In favor of the claim is the opinion of VA surgeon Dr. M.J., who has been treating the Veteran since February 2019 and opined that the Veteran’s radiation therapy from his prostate cancer “certainly” contributed to the Veteran’s development of Ogilvie’s syndrome and need for multiple bowel resections and ileostomy. See August 2019 Letter From Dr. M.J. In addition, another VA provider Dr. G.D. found that the Veteran’s Ogilvie’s syndrome was due to nerve damage from radiation therapy for prostate cancer, and the Veteran’s private physician also opined that the Veteran’s radiation therapy may have caused adhesions in the intestine, which in turn caused his Ogilvie’s syndrome. See July 2017 Private Treatment Record; see also March 2019 VA Treatment Record. Against the claim is the March 2018 opinion of a VA examiner, a nurse, who opined that “it seems less likely as not [. . .] that his claimed colon condition was caused only by his prostate cancer treatment.” See March 2018 DBQ (emphasis added). Notably, the March 2018 VA examiner employed speculative language (“seems”), rendering her opinion nonprobative. Additionally, the unfavorable October 2018 VA opinion from Physician Assistant M.K. suggested that the etiology of Ogilvie’s syndrome was the Veteran’s use of the drug prednisone or his other comorbidities, but similarly noted the etiology of the syndrome is “not fully understood and controversial.” See October 2018 VA medical opinion. The Board affords more probative value to the two favorable opinions from VA physicians, particularly Dr. M.J., who has been treating the Veteran and is very familiar with his relevant history, over the unfavorable opinion from M.K., who has less medical expertise and conceded that the etiology of the condition is multifactorial. Therefore, secondary service connection is warranted for Ogilvie’s syndrome, status post bowel resections and ileostomy. 2. From October 6, 2017, entitlement to a TDIU is granted. The Veteran filed a claim for TDIU due to prostate cancer on October 6, 2017. See October 2017 VA Form 21-8940. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). The Board observes that the Veteran is in receipt of service connection for prostate cancer with a 100 percent rating from August 28, 2009, and with a 60 percent rating from March 1, 2015. Moreover, as described above, the Veteran is now service-connected for Ogilvie’s syndrome, status post bowel resections and ileostomy, which includes iron deficiency and requires that he receive total parenteral nutrition via intravenous therapy each night. See March 2019 Lay Statement by Veteran’s Spouse; see also August 2019 Letter From Dr. M.J. As of the date of the TDIU claim, October 6, 2017, the Veteran meets the threshold schedular requirement for the award of a TDIU, and this appeal turns on whether the functional impairment associated with his service-connected disability is of such nature and severity as to preclude substantially gainful employment. The evidence of record reflects that the Veteran has completed high school and that he last held substantially gainful employment on July 1, 2008, as a construction worker. See May 2012 and August 2018 VA Forms 21-4138; see also August 2018 VA Form 21-8940. The December 2017 VA examiner opined that the Veteran’s incontinence from prostate cancer impacts his ability to work and that his occupational environment would need to be able to accommodate his frequent urination need. Notably, the Veteran reported at that time that he had a voiding interval of less than one hour, voided three to four times per night, and required absorbent material that needed to be changed two to four times per day. See id. In August 2018, the Veteran reported worsening symptoms, as he changed absorbent pads five times a day, wore a diaper while traveling, and voided five to six times during the night. See August 2018 VA Form 21-4138. The Veteran also endorsed chronic fatigue caused by his nightly sleep disturbances from getting up to void. See id. This evidence overwhelmingly establishes that the Veteran’s service-connected prostate cancer precludes him from securing and maintaining substantially gainful employment consistent with his education and occupational background in construction. Thus, the Board finds that the criteria for a TDIU are met from October 6, 2017. The Board need not discuss the significant occupational impact of the Veteran’s service-related Ogilvie’s syndrome, as a TDIU is warranted on his prostate cancer alone. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ramirez, Associate Counsel 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.