Citation Nr: 21009221 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 11-31 233 DATE: February 19, 2021 REMANDED Entitlement to service connection for a urinary disability to include incontinence and benign prostate hypertrophy is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or at the housebound rate is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from September 1959 to February 1961 and from January 1991 to March 1991. The Veteran also had an intervening period of service with a Reserve Component. In a January 2014 decision the Board of Veterans’ Appeal (Board) referred to the regional office (RO) for additional development claims of service connection for a urinary disability as well as for left and right leg neurological disabilities, granted a 40 percent rating for the back disability, and remanded the claim for a TDIU. The Veteran appealed the January 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent June 2014 order, that incorporated the parties of Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the January 2014 Board decision to the extent that it referred, and did not remand, the Veteran claims of service connection for a urinary disability as well as for left and right leg neurological disabilities for additional development. In January 2015 the Board remanded the Veteran’s claims of service connection for a urinary disability as well as for left and right leg neurological disabilities and while these issues were in Remand status the claimant perfected his appeal as to the claims for an increased rating for a back disability as well as for service connection for a urinary disability, left and right leg neurological disabilities, left and right knee disorders and left and right hip disorders as well as the claims for SMC based on the need for regular aid and attendance or at the housebound rate. In July 2020 the Board denied the claim for an increased rating for a back disability and remanded claims of service connection for a urinary disability, left and right leg neurological disabilities, left and right knee disorders and left and right hip disorders as well as the claims for SMC based on the need for regular aid and attendance or at the housebound rate and for a TDIU. As to the claims of service connection for left and right leg neurological disabilities, the RO thereafter granted the Veteran service connection for these disabilities in a November 2020 rating decision. Therefore, the Board finds that these issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). Lastly, the Board notes that in February 2021 it received notice from the Veteran’s attorney that he was withdrawing as his representative. The Board received notice from the Veteran that his attorney had withdrawn and he would be perusing his appeal without a representative. Therefore, the Board finds that no further action needs to be taken as to this matter. Entitlement to service connection for a urinary disability as well as bilateral knee and hip disorders are remanded. As to the claims of service connection for a urinary disability, bilateral knee disorders, and bilateral hip disorders, the Veteran asserts that his disorders are due to his military service and/or his service-connected back disability. Moreover, in July 2020 the Board remanded the appeal to, among other things, obtain new medical opinions as to whether the Veteran’s urinary disability, bilateral knee disorders, and bilateral hip disorders were aggravated by his service-connected back disability applying the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) new definition of aggravation which now includes a temporary worsening of a disability. However, while the post-Remand record shows that the RO obtained etiology opinions in August 2020, October 2020, and November 2020, none of these examiners specifically opined as to whether the Veteran’s service-connected back disability caused a temporary worsening of his urinary disability to include incontinence and benign prostate hypertrophy, bilateral knee disorders, and bilateral hip disorders. Therefore, the Board does not find the post-Remand VA opinions adequate and another Remand to obtain the requested aggravation opinion is required. See 38 U.S.C.§ 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). As to the claim of service connection for a urinary disability, the Board notes that while the August 2020 VA examiner diagnosed urinary incontinence, the November 2020 VA examiner stated that the Veteran’s “urinary incontinence was acute and transitory resolving without residual and not to be considered a chronic disability for rating purposes.” Therefore, the Board finds that a Remand is also required to reconcile these apparently conflicting medical opinions as to whether the Veteran has a current disability. See 38 U.S.C.§ 5103A(d); Barr, supra. While the appeal is in remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). Entitlement to SMC based on the need for regular aid and attendance or at the housebound rate as well as for a TDIU are remanded. As to the claims for SMC based on the need for regular aid and attendance or at the housebound rate as well as for a TDIU, the Board finds that they are again inextricably intertwined with the above claims. Therefore, the Board finds that they must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. In order to comply with the July 2020 Remand, obtain diagnoses and aggravation opinions. The claims file should be made available and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. As to the claim for a urinary disability to include incontinence and benign prostate hypertrophy, provide diagnoses for all disabilities. b. As to the claims for any urinary disability to include incontinence and benign prostate hypertrophy, left and right knee disorder, and left and right hip disorder, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it is aggravated by the Veteran’s service-connected back disability and/or left and right left radiculopathy. If providing the diagnosis opinion the examiner must reconcile the August 2020 VA examiner’s diagnosis of urinary incontinence with the November 2020 VA examiner’s statement that the Veteran’s “urinary incontinence was acute and transitory resolving without residual and not to be considered a chronic disability for rating purposes.” If the Veteran does not currently have a urinary disability to include incontinence and benign prostate hypertrophy, the examiner should state whether he previously had such as disability and, if so, when it resolved. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which know includes temporary worsening of a disability. In providing answers to all the above questions the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to all the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.