Citation Nr: 21032127 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-52 503 DATE: May 25, 2021 REMANDED Entitlement to a separate compensable rating for voiding dysfunction is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1955 to April 1962. He was awarded the Good Conduct Medal. Unfortunately, the Veteran died in April 2017. The appellant is his surviving spouse, who has been substituted as the claimant for purposes of processing the claims to completion pursuant to 38 U.S.C. § 5121A. 38 C.F.R. § 3.1010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran appealed the evaluation assigned for his ureterolithiasis with renal dysfunction (claimed as kidney issues) in that decision, and the issue of entitlement to a separate compensable rating for voiding dysfunction is associated with that appeal. The issues on appeal were previously before the Board in October 2018, when they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial of the issues in an April 2019 Supplemental Statement of the Case (SSOC), and returned the case to the Board. In the October 2018 remand, the Board directed the AOJ to obtain a medical opinion as to whether or not the evidence indicates that the Veteran had voiding dysfunction, and whether any such voiding dysfunction was at least as likely as not related to his kidney disability. The Board noted that the examiner should consider and discuss the evidence cited in the remand. The claims file reflects that the AOJ requested the medical opinion; however, the examiner failed to address all relevant evidence in providing the requested opinion. Therefore, there has not been substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a separate compensable rating for voiding dysfunction is remanded. In its October 2018 remand, the Board noted that the appellant claimed to witness the Veteran have issues with voiding, and that a November 2017 private medical record indicated that the Veteran reported urinary urgency and nocturia. In a March 2019 VA medical opinion, the examiner noted numerous medical records pertaining to the Veteran's kidney disability, and the lack of a formal diagnosis of voiding dysfunction. However, the examiner failed to address any of the lay evidence cited in the Board's October 2018 remand. As this evidence is relevant to the appellant's claim, the March 2019 opinion is insufficient on which to render a decision on that claim. Due to that inadequacy, remand is, unfortunately, again necessary so that an addendum opinion can be obtained which addresses all relevant evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). 2. Entitlement to a TDIU is remanded. As previously indicated in the Board's October 2018 remand, the issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a separate compensable rating for voiding dysfunction, and remand of the issue of entitlement to a TDIU is also necessary. See 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 on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any voiding dysfunction the Veteran may have had. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran had voiding dysfunction during the period on appeal. The clinician should specifically address the January 2018 affidavits (received by VA in March 2018) from the Veteran and his spouse regarding his claimed urinary frequency. The clinician should also specifically address the November 2017 private medical record noting urinary frequency and nocturia. If the clinician determines that the Veteran did have a diagnosis of voiding dysfunction at any point during the period on appeal, the clinician should provide an opinion as to whether it is at least as likely as not that his voiding dysfunction was due to, or aggravated by, his service-connected kidney disability, or otherwise due to or aggravated by his active duty military service. The examiner is advised that the Veteran was competent, and the appellant is competent, to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, the clinician is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's and appellant's statements asserting symptomology. The clinician must provide a comprehensive rationale for all opinions expressed and discuss relevant evidence where appropriate. If the clinician cannot provide the requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Specifically, the clinician must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the appellant should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.