Citation Nr: 21005341 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-47 481 DATE: February 1, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability due to VA hemorrhoidectomy on August 9, 2000 is remanded. REASONS FOR REMAND The Veteran served on active duty for training in the U.S. Army from August 1973 to December 1973 and on active duty from January 1975 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a Board video conference hearing in February 2020. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in May 2020 and was remanded for additional development. As discussed below, the Board’s prior remand instructions have not been substantially complied with, and as such the case is again before the Board and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271(1998). Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional disability due to VA hemorrhoidectomy The Veteran contends that compensation is warranted for ongoing symptomology associated with his August 9, 2000 hemorrhoidectomy. The Veteran contends he experiences ongoing bowel incontinence and increased urgency as a result of his August 2000 hemorrhoidectomy. Previously, the claim was before the Board in May 2020 and was remanded for additional development. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Moreover, the Court has held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Although on remand the RO obtained an addendum opinion regarding the Veteran’s complications from his August 9, 2000 hemorrhoidectomy, the RO did not substantially comply with the remand directives as the examiner failed to fully address the components required to obtain compensation pursuant to 38 U.S.C. § 1151. Specifically, there is conflicting evidence of record regarding whether the Veteran has an additional disability of bowel urgency and incontinence proximately caused by the June 2000 hemorrhoidectomy. As a result of the prior remand, the Veteran was afforded a VA opinion in September 2020. The Veteran reported after surgery he had symptoms which began in 2006 and he now he has fecal incontinence with urgency and stool. Examination was normal with no external hemorrhoids, anal fissures or other abnormalities. The Veteran reports that his condition impacts his ability to work in that he has to be near a restroom at all times. The VA examiner noted that the Veteran’s reports of anal itching and bowel urgency are based solely on the Veteran’s reports and complaints. There is no evidence that such is a diagnosis, rather this may or may not be a symptom the Veteran is experiencing. The examiner noted that the hemorrhoidectomy was not the cause of the reported bowel incontinence and urgency and found a diagnosis of bowel urgency and bowel incontinence was not rendered due to no objective evidence to support such. As such the examiner found that the Veteran did not have an additional disability of bowel urgency and incontinence caused by the hemorrhoidectomy performed on August 9, 2000. The examiner noted the Veteran reported rectal pain in 2006, 6 years after his hemorrhoidectomy and stared having urgency and incontinence around 2008. Symptoms of bowel urgency and incontinence would have been seen shortly after surgery and would not have taken 8 years to manifest. The Veteran did not report any complications or problems post operatively and records show no complications with surgery. The VA examiner failed to fully address the entirety of the questions associated with compensation pursuant to 38 U.S.C. § 1151. Further, a private opinion from December 2020 has been associated with the claims file. The private treatment records note the Veteran experiences full incontinence of feces. The private opinion noted that it is certainly possible that the Veteran’s hemorrhoidectomy resulted in some weakening of the sphincter mechanism and a rectal manometry to assess such was recommended. The private opinion noted no other obvious cause for the Veteran’s incontinence. As such the Board finds a remand is warranted for a supplemental VA opinion. In addition, the Veteran and his representative in October 2020 correspondence have raised the issue that proper diagnostic testing was not done to determine if the Veteran has a current diagnosis of bowel incontinence. The Veteran’s representative has also raised the issue seeking to challenge the competency and qualifications of the September 2020 VA examiner. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner’s competence in the first instance). The Board finds the October 2020 correspondence challenges the competency of the VA examiner which meets the Francway criteria. This challenge is beyond the general assertions of inadequacy and are sufficient to shift the burden of persuasion over to VA to establish the examiner’s qualifications by providing information about those qualifications to the Veteran. As the Veteran’s representative has provided adequate rationale challenging the competency of a prior VA examination the AOJ should provide the necessary requested educational and professional background information in compliance with Francway. As such a remand is warranted for additional development. The matters are REMANDED for the following action: 1. The AOJ should take appropriate action to respond to the Veteran’s and his representative’s requests and provide the necessary requested educational and professional background information in compliance with Francway. Including copies of the curriculum vitae and other credentialing documents for the September 2020 VA examination. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s complications from his August 9, 2000 hemorrhoidectomy and whether: (a.) Did the Veteran incur an additional disability of bowel urgency and incontinence proximately caused by the hemorrhoidectomy performed by VA on August 9, 2000? The clinician is requested to address the conflicting evidence of record including the Veteran’s contentions regarding ongoing bowel urgency and incontinence, as well as the September 2020 VA examination and the December 2020 private opinion. (b.) If an additional disability is found, was this additional disability, proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment or examination? (c.) Was any additional disability, (identified above) proximately caused by VA treatment an event not reasonably foreseeable? Further was the risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examining physician/specialist is asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). Attention is invited to the August 2017 VA opinion noting that the Veteran’s claimed disability was less likely than not caused by or a result of VA treatment. The examiner noted that the Veteran’s additional disability did not result from VA’s personnel failure to follow the appropriate standard of care, and the current disability could not have been foreseen by a reasonable healthcare provider noting the long span of time between surgery and when the Veteran sought care for the condition. The VA examiner noted that fecal incontinence is a very rare complication that should not have occurred in an individual who had no occurrence os such prior surgery. In addition, attention is invited to the September 2020 VA opinion the examiner found that the Veteran did not have an additional disability of bowel urgency and incontinence caused by hemorrhoidectomy performed on August 9, 2000. The examiner noted that the Veteran reported rectal pain in 2006, 6 years after hemorrhoidectomy and stared having urgency and incontinence around 2008. Symptoms of bowel urgency and incontinence would have been seen shortly after surgery and would not have taken 8 years to manifests. The Veteran did not report any complications or problems post operatively and records show no complications with surgery. As well as a private opinion from December 2020 has been associated with the claims file. The private treatment records noted full incontinence of feces. The private opinions noted that it is certainly possible that the Veteran’s hemorrhoidectomy resulted in some weakening of the sphincter mechanism and a rectal manometry to assess such was recommended. The private opinion noted no other obvious cause for his incontinence. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.