Citation Nr: 21068384 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 15-31 517 DATE: November 10, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for fecal incontinence is remanded. REASONS FOR REMAND On last review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. See 02/02/2021 BVA Decision. As noted below, the Board finds that the remand directives were not complied with. Hence, another remand is indicated. See Stegall v. West, 11 Vet. App. 268 (1998). 1151 claim for problems due to colonoscopy is remanded. The February 2021 remand directed the AOJ to obtain a release from the Veteran to obtain the full Informed Consent that the Veteran signed prior to the November 2010 colonoscopy conducted at North Richland Hills Endoscopy Center. The AOJ provided the releases to the Veteran. See 02/05/2021 Subsequent Development Letter. The Veteran, however, opted to fax an apparent personal copy of the Consent instead of returning the completed and signed releases. See 03/12/2021 Medical Treatment-Government Facility. The copy provided by the Veteran is of poor quality and is not helpful to the Board. Further, it is not entirely clear that what the Veteran provided is the complete Consent Form that he signed. Thus, the Veteran must be advised that he should either provide a completed release so that the AOJ can obtain the record from North Richland or assume the risk of the poor-quality copy he provided. Second, the AOJ obtained a medical review and opinion from a physician in 2019. The February 2021 remand directed that the AOJ send the claims file to the physician who provided the December 2019 medical review and nexus opinion or an equally qualified substitute clinician. (Emphasis added). The examination reports (04/06/2021, 05/13/2021 C&P Exams) reflect that the AOJ sent the claims file to a nurse practitioner (NP) instead of a physician. That alone constitutes non-compliance with the remand directive. Stegall, 11 Vet. App. 268. Third, and lastly, the NP noted that the Veteran's fecal incontinence could possibly be related to his service-connected Parkinson's Disease. See 04/06/2021 C&P Exam, 4th Entry. Since a medically trained professional noted that prospect, the AOJ must obtain an opinion from a competent clinician. The matters are REMANDED for the following action: 1. Inform the Veteran via letter that the copy of the Endoscopy Consent that he provided is of too poor a quality for appellate review. Inform him further that VA prefers that he provide the appropriate release so that VA can obtain the record from North Richland Hills Endoscopy Center; and, that if he continues to opt not to provide the release, he bears the responsibility of mailing (to avoid electronic distortion) a better copy and understanding that the Board must still determine whether what he provides is in fact the complete Informed Consent. 2. After the above is complete, regardless of whether additional records are obtained, send the claims file to a physician, even if the claims file must be sent to a facility that is not co-located with the AOJ. (Emphasis added). Ask the clinician to review the file and then address the following questions: A. Did the Veteran's primary care physician follow the applicable standard of care in suggesting, recommending, or ordering the November 2010 colonoscopy? If so, the reviewing clinician must set forth the applicable standard of care and then note and explain the evidence that shows that it was followed. B. The clinician must fully set forth what the applicable standard of care was for the November 2010 colonoscopy and then discuss whether the November 2010 colonoscopy was performed in compliance with this applicable standard of care. C. The clinician is asked to review the records from the UT Southwest Medical Center. Specifically, the entries related to the February 2013 endonal ultrasound and anorectal manometry: one entry notes fecal incontinence due to an injury to the nerve of the pelvic girdle and lower limb, whereas another record notes that the tests performed did not show a significant etiology for the Veteran's fecal incontinence. See 09/13/2019 Medical Treatment-Non-Government Facility, P. 5; 09/24/2020 Non-Government Facility. If the clinician opines that the noted records in fact reflect that the fecal incontinence is due to an injury of a nerve of the pelvic girdle, then the clinician is asked to opine as follows: is it at least as likely as not (at least a 50 percent probability) that the November 2010 colonoscopy was the proximate cause for the injury due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the medical provider who performed the colonoscopy; or, is it at least as likely as not that the proximate cause of the disability was an event not reasonably foreseeable? The clinician must provide a full explanation for all opinions provided. As noted, a full explanation must indicate what the applicable standard of care was and how it was met or not met. 3. If the clinician opines that the answer to all of the above questions is, no, then please opine on whether it is at least as likely as not that the Veteran's fecal incontinence is due to his service-connected Parkinson's Disease? If the answer is no, then is it at least as likely as not that the Veteran's service-connected Parkinson's Disease worsens the fecal incontinence? Inform the clinician that any aggravation or worsening of the fecal incontinence need not have been or be chronic or permanent to satisfy the standard of secondary service connection. Instead, any impairment in earning capacity due to temporary flare-ups of the fecal incontinence caused by the Parkinson's Disease disability can satisfy the criteria. See Ward v. Wilkie, 31 Vet. App. 233 (2019). As with the other requested opinions, the clinician must provide a full explanation for all opinions provided, to include the applicable medical principles involved. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.