Citation Nr: 21065610 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 09-32 378 DATE: October 26, 2021 REMANDED Entitlement to service connection for fecal incontinence is remanded. Entitlement to service connection for an acquired psychiatric disorder to include depression is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1977 to May 1979. In March 2018 the Veteran died. In May 2019 the regional office (RO) granted the appellant's claim for substitution. In March 2011, the Veteran testified before a Veterans Law Judge (VLJ) and a hearing transcript is included in the file. When that VLJ retired from employment with the Board of Veterans' Appeal (Board), the Veteran at his request was scheduled for another hearing in February 2017. However, the Veteran did not appear for that hearing. Therefore, the Board finds that the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). In July 2011, April 2012, September 2015, and October 2017 the Board, among other things, remanded the above claims. In a November 2019 decision a VLJ other than the undersigned, among other things, denied service connection for fecal incontinence and an acquired psychiatric disorder to include depression as well as entitlement to a TDIU. The Veteran appealed the part of the Board's November 2019 decision that denied service connection for fecal incontinence and an acquired psychiatric disorder to include depression as well as entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the November 2019 Board decision to the extent that it denied the above claims. In February 2021 and May 2021, the Board remanded the above claims to attempt to address the concerns raised in the September 2020 JMPR. Lastly, the Board notes that the appellant appears to have pending pension claims. However, because these claims are under the Appeals Modernization Act (AMA) review system (see 84 Fed. Reg. 138 (Jan. 18, 2019)), the Board finds that they cannot be addressed in the current Remand which is under the Legacy Appeal System. Entitlement to service connection for fecal incontinence is remanded. As to the claim of service connection for fecal incontinence, the JMPR vacated and remanded the November 2019 Board decision because, in substance, none of the VA examinations found in the record included etiology opinions as to whether the Veteran's fecal incontinence was aggravated by his service-connected residuals of ulcer with partial gastrectomy. See ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, in February 2021 and May 2021 the Board remanded the claim to obtain the needed aggravation opinion. See 38U.S.C. § 5103A(b); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). However, the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) (issued years after this case began) recently redefined the definition of aggravation to now include temporary flare-ups. Moreover, it does not appear that either the February 2021 or the June 2021 post-Remand VA examiners applied this new definition of aggravation when providing the requested etiology opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, the Board finds that another Remand is required to obtain an adequate etiology opinion. See 38U.S.C. § 5103A(d). While this issue is in Remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). Entitlement to service connection for an acquired psychiatric disorder to include depression is remanded. As to the claim of service connection for an acquired psychiatric disorder to include depression, the existing record does not include a direct service connection etiology opinion or a secondary etiology opinion. See ElAmin, supra; McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). Therefore, the Board finds that this issue also needs to be Remanded to obtain etiology opinions. See 38U.S.C. § 5103A(d). Entitlement to a TDIU is remanded. As noted in the JMPR, the claim for a TDIU is inextricably intertwined with the above service connection claims. Therefore, the Board finds that the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records pertinent to this claim. 2. After obtaining all needed authorizations from the appellant, associate with the claims file any outstanding private treatment records. If possible, the appellant herself should submit and new pertinent evidence the Board/VA does not have (if any). 3. In order to comply with the JMPR, obtain VA opinions from a suitably-qualified medical professional to address the claim of service connection for fecal incontinence. The claims file should be made available and reviewed by the examiner in conjunction with providing the opinions. After a consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's fecal incontinence was caused by a disease or injury while on active duty. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's fecal incontinence was caused by his service-connected residuals of ulcer with partial gastrectomy. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's fecal incontinence was aggravated by his service-connected residuals of ulcer with partial gastrectomy. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above questions the examiner should consider and discuss the competent lay claims regarding observable symptomatology the Veteran made during his lifetime and by the appellant since that time to include the March 2011 testimony that the appellant experienced fecal incontinence prior to his in-service ulcer surgery. In providing answers to the above questions the examiner should consider and discuss the August 2004 VA examination report which found the Veteran's complaints of diarrhea more likely as not related to his in-service surgery for peptic ulcer disease. In providing an answer to the above question the examiner should not rely solely on negative evidence. In providing answers to the above questions the examiner is advised that 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. In providing answers to the above questions the examiner is advised that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering all the above questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Obtain VA opinions from a suitably-qualified medical professional to address the claim of service connection for an acquired psychiatric disorder to include depression. The claims file should be made available and reviewed by the examiner in conjunction with providing the opinions. After a consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide diagnoses for all acquired psychiatric disorder the Veteran had during his lifetime. b. As to each acquired psychiatric disorder the Veteran had during his lifetime to include depression, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by a disease or injury while on active duty. c. As to any diagnosed psychosis, provide an opinion as to whether it manifested in the first-post service year. d. As to each acquired psychiatric disorder the Veteran had during his lifetime to include depression, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by his service-connected residuals of ulcer with partial gastrectomy and/or his nonservice connected fecal incontinence. e. As to each acquired psychiatric disorder the Veteran had during his lifetime to include depression, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was aggravated by his service-connected residuals of ulcer with partial gastrectomy and/or his nonservice connected fecal incontinence. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the competent lay claims regarding observable symptomatology the Veteran made during his lifetime and by the appellant since that time. In providing answers to the above question the examiner should not rely solely on negative evidence. In providing answers to the above question the examiner is advised that 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. In providing answers to the above questions the examiner is advised that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.