Citation Nr: 21072313 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-33 216 DATE: December 2, 2021 ORDER Entitlement to service connection for constipation is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound status is remanded. FINDING OF FACT The Veteran's constipation is proximately due to the medications used to treat his service-connected lumbar spine degenerative arthritis. CONCLUSION OF LAW The criteria for service connection for constipation, as secondary to medications used to treat service-connected lumber spine degenerative arthritis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1957 to April 1960. He testified before the Board at a December 2017 videoconference hearing. A transcript of the hearing has been associated with the Veteran's claims file. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a service connection. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by a service-connected disability. 38 C.F.R. §§ 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). The Board, as factfinder, is responsible for assessing the credibility and weight to be given to evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 37 (Fed. Cir. 2006). When assessing the credibility of lay documentary evidence, the Board may consider factors such as facial plausibility, bias, self-interest, internal consistency, and consistency with other evidence of record. Caluza v Brown, 7 Vet. App. 498, 511 (1995); Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). When assessing oral testimony before the Board, the Board may consider the demeanor of the witness(es), the facial plausibility of the testimony, and the consistency of the testimony with other testimony and affidavits submitted on behalf of the veteran. Caluza, 7 Vet. App. at 511. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran claims that his constipation is related to the medication used to treat his arthritis. See hearing Transcript, pg. 27. The Veteran is now service-connected for lumbar spine degenerative arthritis, and VA treatment records as well as the February 2020 examination show that the Veteran is being treated for constipation. Upon review of the evidence of record, the Board grants the appeal for service connection for constipation as secondary to the medications used to treat the Veteran's service-connected lumbar spine degenerative arthritis. Indeed, there is probative medical evidence of record demonstrating that the Veteran's current constipation is proximately due to his service-connected lumbar spine degenerative arthritis. See 38 C.F.R. § 3.310. A May 2013 VA treatment record showed that the Veteran was prescribed morphine and also noted that the side effects included constipation. A November 2014 VA treatment record reflected that he had arthritis in the neck, shoulder, knees, and lumbar spine for which he was prescribed morphine for pain control. Various VA treatment records, including a March 2016 record, documented that his constipation was stable and treated with sennoside and docusate. The record also noted that he prescribed morphine for his osteoarthritis and indicated that morphine was related to his constipation. At a February 2020 intestinal conditions examination, the examiner reviewed the claims file and examined the Veteran. The Veteran was diagnosed with constipation. The examiner opined that the Veteran's constipation was at least as likely as not proximately due to or the result of the Veteran's service-connected condition. The examiner reasoned that the Veteran's constipation was at least as likely as not proximately due to or the result of narcotics and inactivity due to arthritis of various joints. In August 2020, a different examiner opined that the Veteran's constipation was at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran's service-connected condition. The examiner specifically noted that all available medical records and remand documents were reviewed. The examiner reasoned that opiates commonly caused the side effect of constipation. The examiner added that the Veteran's "multiple joint arthritis" was determined to NOT be service-connected. However, the Board notes that the Veteran has since been awarded service connection for multiple bilateral hip, lumbar spine, bilateral lower extremity, bilateral ankle, and bilateral knee disabilities related to the Veteran's claim for "multiple joint arthritis." See September 2021 rating decision. Accordingly, secondary service connection for constipation is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). As service connection for constipation, is being granted on a secondary basis based on causation, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). REASONS FOR REMAND An in-person examination could not be conducted to assess the Veteran's potential need for the aid and attendance of another (for the purposes of awarding SMC) due to safety concerns stemming from the COVID-19 pandemic. A July 2020 opinion was based solely on review of the Veteran's claims file. The opinion provider determined that the Veteran did not need assistance in bathing and tending to other needs. However, the reviewing clinician did not account for the Veteran's reports of having a person come to his house every morning for approximately 5 hours a day to help him in and out of the bath. The Veteran indicated that he sometimes needed help. See December 2017 hearing transcript, pgs. 42-43. The reviewing clinician also found that there were no restrictions with limitation of motion in the lower extremities, and no restrictions in the spine and trunk. However, February 2020 examination reports clearly show limitation of motion in the Veteran's knees and back. Also, the September 2021 examinations revealed limitations in motion in the hips, knees, ankles, and spine. Additionally, at the September 2021 knee and hip examinations, the Veteran reported that the impact of the conditions was daily pain that limited his ability to do many normal activities of daily living. At the September 2021 back examination, the Veteran claimed that his back impacted many normal activities such as picking up groceries, walking, standing, and tying his shoes. Another attempt should be made to arrange for an examination of the Veteran to assess whether he has a need of regular aid and attendance due to service-connected disabilities. The matters are REMANDED for the following action: Arrange for an examination of the Veteran to assess whether he has a need of regular aid and attendance that is at least as likely as not due to his service-connected disabilities. If an in-person examination cannot be conducted, a virtual examination or interview should be considered, if feasible. If an in-person or virtual examination cannot be performed, an opinion addressing the question below should still be obtained based on a complete review of the record. It is requested that the guides for conducting aid and attendance examinations be used, and that all clinical findings as to the service-connected disabilities be set forth in detail. The examiner is requested to respond to the following: Is it at least as likely as not (approximately 50 percent probability) that the service-connected disabilities (listed in a September 2021 rating decision codesheet) (1) render him so helpless as to require the regular aid and attendance of another person; or (2) result in physical or mental impairment that leave him substantially confined to his dwelling and immediate premises (with reasonable certainty that such disability or disabilities and resultant confinement will continue throughout his lifetime)? In providing a response, the examiner should consider and discuss the Veteran's testimony indicating that someone comes to his house every morning for approximately 5 hours a day to help him, including with getting in and out of the bathtub. The examiner should also consider the results of recent orthopedic examinations reflecting limitation in motion of the knees, hips, back, and ankles, and limitations in normal daily activities. All opinions should be supported by a medical explanation or rationale. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.