Citation Nr: 21076433 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-25 274 DATE: December 23, 2021 REMANDED Entitlement to a separate disability rating for impairment of sphincter control is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1966 to February 1970, and from March 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a video conference hearing before someone other than the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is available in the record. On November 1, 2021, the Veteran was notified that the VLJ who conducted the March 2017 hearing was no longer available to participate in the adjudication of the Veteran's claim. The Veteran was also informed of his right to a new hearing. This letter indicated that if there was no response to this letter within 30 days, the Board would presume that he did not desire another hearing. The Veteran did not respond to such letter within 30 days. Therefore, it is presumed that he does not want another Board hearing. By way of history, this matter was before the Board in February 2018 and February 2020. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred in its February 2020 rating decision when it did not provide an adequate statement of reasons or bases, to include addressing whether the Veteran's condition warranted a separate rating under Diagnostic Code 7332, for impairment of sphincter control. The Court then vacated those parts of the February 2020 decision concerning the matters and remanded them to the Board. This matter was most recently remanded in a May 2021 Board decision for a medical opinion to determine whether the Veteran's reported bowel impairment is due to, or aggravated by, his service-connected prostate residuals. An August 2021 medical opinion was provided that is inadequate. In this regard, the aggravation prong was not addressed, and the rationale provided to support the negative nexus opinion regarding causation is based on an inaccurate characterization of the record. The VA examiner determined that based upon a review of the entire record there was no evidence of complaints or findings relevant to loss of rectal sphincter control. However, as the Court noted in the JMPR, private treatment records from March 2012 show the Veteran had frequent bowel movements, his July 2014 form 9 indicated ongoing bowel dysfunction, and a bowel calendar submitted in January 2015 noted the frequency of his movements from November 2014 to January 2015. As there has not been substantial compliance with the May 2021 Board directives, a remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the etiology of any impairment of sphincter control from a VA examiner. A copy of this REMAND and the claims file should be provided to and reviewed by the VA examiner. If the examiner finds that a physical examination is needed, such should be scheduled. The examiner should provide an opinion as to whether it is at least as likely as not that any sphincter control impairment: a. Was caused by his service-connected residuals of prostate cancer. b. underwent any incremental increase in disability, regardless of its permanence, due to his service-connected residuals of prostate cancer i.e., was aggravated. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. The VA examiner must consider the March 2012 treatment records, a bowel movement calendar submitted in January 2015, and the Veteran's lay statements. Rationale for the requested opinion shall be provided. If the examiner concludes that an opinion cannot be offered without resort to mere speculation, the examiner must address whether research in the medical literature might assist him/her in providing the medical opinion requested in this matter, and if so, such research in the medical literature must be conducted. The examiner must also indicate whether any use of the phrase "without resorting to mere speculation" reflects the limitations of knowledge in the medical community at large as opposed to the limits of his/her knowledge and expertise in particular. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.