Citation Nr: 21005577 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 09-32 378 DATE: February 2, 2021 REMANDED Entitlement to service connection, to include on a secondary basis, for fecal incontinence is remanded. Entitlement to service connection, to include on a secondary basis, for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1977 to May 1979. The Veteran died in March 2018. The appellant is the Veteran’s widow. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by a Department of Veterans Affairs Regional Office (RO). In a November 2019 decision, the Board denied the Veteran’s service connection claims for fecal incontinence, a psychiatric disorder and entitlement to a TDIU. The Board also denied an increased rating for the Veteran’s service-connected ulcer condition. The appellant appealed only the portions of the Board’s decision pertaining to the service connection and TDIU claims to the U.S. Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court vacated the Board’s November 2019 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by relying on inadequate VA examinations. In this regard, the Court noted that the VA examinations of record failed to provide an opinion as to whether the Veteran’s service-connected ulcer condition aggravated his fecal incontinence. Specifically, the Court noted that the VA examination reports only provided opinions with regard to whether the in-service perforated ulcer, vagotomy and pyloroplasty aggravated the Veteran’s fecal incontinence and failed to address whether any current residuals aggravated the claim on appeal. In addition, the JMR found that the Board erred by providing an inadequate statement of reasons or bases when it found that testimony provided at the March 2011 Board hearing was not credible. In this regard, the Court noted that the Board found that testimony provided by the Veteran’s fiancé had asserted she had firsthand knowledge of the Veteran’s medical conditions prior to 1979, and, thereby, found her testimony not credible as she had not known the Veteran at that time. However, as noted by the Court, the fiancé testimony could also have been viewed as suggesting she was testifying to information she obtained from the Veteran and his doctors, and, therefore, not based on firsthand knowledge. 1. Fecal Incontinence With regard to the service connection claim for fecal incontinence, the Board notes that the Veteran had undergone several VA stomach and renal examinations. Initially, the Veteran underwent a VA stomach examination in August 2004. The Veteran reported worsening symptoms including complaints of diarrhea described as loose watery stools for the past 2 years. Additionally, the Veteran reported uncontrollable bowel movements when he held his bladder for prolonged periods of time, which occurred 1 to 2 times per month. The examiner noted that the Veteran’s complaints of diarrhea and abdominal pain were considered more likely as not related to his in-service surgery for peptic ulcer disease. The Veteran underwent another VA stomach examination in September 2007. The Veteran reported diarrhea with 4 bowel movements per day with liquid stools. He also reported that it felt like he could not hold his bowel movements. In addition, due to his fecal incontinence, he could not attend social gatherings and had difficulty in public places with no easy access to a rest room. The examiner found that the etiology of the Veteran’s fecal incontinence was not certain. In June 2009, the Veteran underwent a VA rectum examination. The Veteran complained if diarrhea 2 to 3 times per day described as pasty stools. He denied any constipation. With regard to fecal incontinence, the Veteran reported that the condition began approximately 6 to 7 years prior. He further reported that if he had an urge, he had to respond right away otherwise he would have an accident. He also reported that his undergarments sometimes became soiled. The examiner noted a diagnosis for fecal incontinence. In addition, the examiner noted that the etiology of the Veteran’s fecal incontinence was still in the process of being developed, and, therefore, remained unclear. At a November 2011 VA stomach examination, the Veteran reported experiencing fecal incontinence when he urinated. He also reported that his fecal incontinence condition had been worsening. The Veteran also reported that when he was incontinent, his stools were liquid and leaked. Normal stools were noted as mushy in consistency. The examiner opined that it was “less likely than not” that the Veteran’s fecal incontinence was etiologically related to his in-service surgery. In support of this opinion, the examiner noted that post-surgery records did not show that the Veteran claimed incontinence, and that he did not report the condition until approximately 2004/2005. In this regard, the examiner noted that if the Veteran’s fecal incontinence had resulted from his in-service surgery, it would have manifested at that time. During a May 2015 VA stomach and rectum examination, the Veteran reported that he began having fecal leakage with urine and later diarrhea in 2004. He also reported that 2 to 3 times per day, he had mushy, non-bloody, non-mucoid stools. The Veteran was noted to have normal sphincter tone upon examination, and normal external and internal sphincters. The examiner noted that the Veteran had also been diagnosed with GERD in 2006. The examiner opined that it was “less likely than not” that the Veteran’s 1979 perforated duodenal ulcer and vagotomy, vagectomy, pyloroplasty and tube gastrotomy in 1979 was responsible for the Veteran’s fecal incontinence symptoms that began in 2004. In support of this opinion, the examiner noted that the Veteran had no fecal incontinence symptoms until 25 years after his in-service surgery, and if a nerve had been severed, his symptoms would have been expected to have arisen immediately after his surgery. The last VA opinion was in July 2019. The examiner opined that it was not “at least as likely as not (a 50% or higher degree of probability)” that the Veteran had fecal incontinence related to service. In support of this opinion, the examiner noted that no fecal incontinence was documented in the STRs, and that the condition was not documented until the early 2000’s. Additionally, the examiner noted that duodenal ulcer disease did not cause fecal incontinence. The examiner further found that based on the Veteran’s reported clinical history, that such was not consistent with a post-operative complication of his in-service vagotomy and pyloroplasty for duodenal ulcer disease. The examiner further relied on a 2006 VA gastroenterology record noting that the Veteran fecal incontinence was not related to his service, and instead found that the evidence suggested “some kind of pelvic floor relaxation issues…” The examiner further opined that it was not “at least as likely as not (a 50% or higher degree of probability)” that the Veteran’s fecal incontinence was proximately due to his service-connected ulcer with partial gastrectomy, to include treatment both during and after service. In support of this opinion, the examiner noted that the Veteran did not have an ulcer with partial gastrectomy during service, and that his reports were not consistent with post-operative complications of the in-service vagotomy and pyloroplasty for duodenal ulcer disease. In addition, the examiner again noted the above-mentioned 2006 VA gastroenterology record suggesting a pelvic floor relaxation issue. Lastly, the examiner opined that it was not “at least as likely as not (a 50% or higher degree of probability)” that the Veteran’s fecal incontinence had been aggravated by his service-connected ulcer with partial gastrectomy, to include any treatment both during and after service. In support of this opinion, the examiner noted that the Veteran did not have fecal incontinence prior to the early 2000’s. As noted above, the Court found the VA examinations of record inadequate to adjudicate this issue on appeal as they only provided opinions with regard to whether the in-service perforated ulcer, vagotomy and pyloroplasty aggravated the Veteran’s fecal incontinence, and, therefore, failed to address whether any current residuals aggravated the claim on appeal. With regard to the July 2019 VA examination, the Court noted that with regard to aggravation, the examiner’s rationale simply stated that the Veteran did not have fecal incontinence prior to the early 2000’s which did not pertain to the question on appeal. Additionally, for reasons noted above, the Court found that the July 2019 VA examiner failed to comply with the October 2017 Board Remand instructions to comment on the Veteran and his fiancée’s March 2011 testimony that he had experienced fecal incontinence prior to the onset of his in-service ulcer. For similar reasons, the Board additionally finds that the VA examinations of record inadequately address whether the Veteran’s fecal incontinence was caused by any current residuals. In this regard, a review of the July 2019 VA examination report shows that the examiner provided a negative nexus opinion based on a finding that the Veteran did not have an ulcer with partial gastrectomy during service. Accordingly, a remand is necessary to obtain a VA examination report that addresses whether the Veteran’s fecal incontinence was caused or aggravated by his service-connected residuals of ulcer with partial gastrectomy. 2. Acquired Psychiatric Disorder 3. TDIU Lastly, the claims for service connection for an acquired psychiatric disorder and entitlement to a TDIU are inextricably intertwined with the service connection claim for fecal incontinence on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). As the claims should be considered together, it follows that, any Board action on the service connection for an acquired psychiatric disorder and TDIU claim, at this juncture, would be premature. Hence, a remand of these matters is warranted, as well. The matters are REMANDED for the following action: 1. Obtain an examination report by an appropriate examiner to determine the nature and etiology of the Veteran’s fecal incontinence (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s fecal incontinence is etiologically related to his period of service? The examiner should specifically comment on the Veteran’s March 2011 testimony that he experienced fecal incontinence prior to his in-service ulcer surgery. The examiner is also asked to consider 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. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s fecal incontinence was caused by a residual of his service-connected ulcer condition with partial gastrectomy? Please explain why or why not. The examiner should note and consider any residuals related to the Veteran’s service-connected ulcer condition since separation from service. The examiner is also asked to consider 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. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s fecal incontinence was aggravated by a residual of his service-connected ulcer with partial gastrectomy? Please explain why or why not. The examiner should note and consider any residuals related to the Veteran’s service-connected ulcer condition since separation from service. If the examiner finds that the fecal incontinence condition was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. (Continued on the next page)   2. Thereafter, readjudicate the claims on appeal. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.