Citation Nr: 21032369 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 09-32 378 DATE: May 26, 2021 REMANDED Entitlement to service connection for fecal incontinence, to include as secondary to service-connected residuals of ulcer with partial gastrectomy, is remanded. Entitlement to service connection for depression, including as secondary to fecal incontinence, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1977 to May 1979. The Veteran passed away in March 2018 during the pendency of this appeal. The RO granted substitution in May 2019 to the Veteran's surviving spouse, who is now the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before a Veterans Law Judge (VLJ) in March 2011. A hearing transcript is included in the file. When that VLJ retired from employment with the Board, a July 2015 letter was sent requesting clarification whether the Veteran wanted a new hearing. The Veteran requested that he be scheduled for another hearing. A hearing was scheduled for February 2017, but the Veteran did not appear for the scheduled hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(d). In a November 2019 decision, the Board denied entitlement to service connection for fecal incontinence, a psychiatric disorder, and entitlement to a TDIU. The Board also denied entitlement to a rating higher than 20 percent for the service-connected residuals of an ulcer with partial gastrectomy, but the Veteran did not appeal that issue. The Veteran subsequently appealed portions of the Board's decision regarding service connection and TDIU claims to the United States Court of Appeals for Veterans Claims (Court). By way of a September 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the November 2019 Board decision that denied entitlement to service connection for fecal incontinence, entitlement to service connection for depression, and entitlement to a TDIU should be vacated and remanded because the Board did not provide an adequate statement of reasons or bases to supports its decision for the denial and failed to ensure that it satisfied the duty to assist. 1. Entitlement to service connection for fecal incontinence, to include as secondary to service-connected residuals of ulcer with partial gastrectomy In the September 2020 JMPR, the Court found that the Board erred when it did not ensure that VA obtained an examination that adequately informed the Board on whether the Veteran's service-connected ulcer aggravated his fecal incontinence. The Court stated that a medical examination report or opinion that fails to address whether a service-connected disability aggravated the claimed disability is inadequate to inform the Board on the issue of secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). In this regard, the Court indicated that the Board relied on VA examination reports and opinions from September 2007, June 2009, November 2011, and May 2015, and January 2012 and July 2019 addendum opinions when it denied secondary service connection for fecal incontinence. The Court found that the November 2011 examination report, and the January 2012 and July 2019 VA addendum opinions were inadequate because they failed to opine on aggravation. See El-Amin, 26 Vet. App. at 140. Specifically, the Court stated that the November 2011 VA examiner opined that the Veteran's incontinence was less likely than not the result of a perforated ulcer during active duty in 1979 and subsequent pyloroplasty and vagotomy. The examiner did not provide an opinion on whether the residuals of in-service perforated ulcer and vagotomy and pyloroplasty aggravated the Veteran's incontinence. In January 2012, the November 2011 examiner provided an addendum opinion, but again failed to opine on whether the residuals of an ulcer with vagotomy and pyloroplasty aggravated the Veteran's fecal incontinence. The Court also found that the July 2019 VA examination was inadequate for similar reasons and the July 2019 examiner failed to comply with the instructions to address the lay statements from the Veteran and his then-fiancée's statements that the fecal incontinence worsened after his in-service ulcer. The Court stated that the examiner did not address the issue of whether the Veteran's in-service ulcer aggravated his incontinence when he simply stated that the Veteran's incontinence did not manifest prior to the early 2000s. Consequently, the parties agreed that these examination reports did not include opinions on whether the residuals of an in-service perforated ulcer and vagotomy and pyloroplasty aggravated the Veteran's incontinence and that a remand was warranted for a new opinion or an addendum opinion. Additionally, the Court found that remand was warranted because the Board provided an inadequate statement of reasons or bases when it found testimony at the March 2011 Board hearing incredible. The Court stated that the Board had found that testimony provided by the Veteran's fiancé had asserted that she had firsthand knowledge of the Veteran's medical conditions prior to 1979, but found her testimony as not credible as she had not known the Veteran at that time. However, the Court noted that the Veteran's fiancé's testimony suggests that she was testifying to information that she obtained directly from the Veteran and his doctors and not based on firsthand knowledge. The Board did not discuss this evidence and thus failed to adequately explain the reasons or bases for its factual finding that the Veteran's fiancé lacked credibility. Pursuant to the February 2021 Board remand instructions, an addendum medical opinion was obtained in February 2021. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. His rationale was that review of the medical records and service treatment record (STR) shows no evidence of the diagnosis, treatment, or symptoms suggestive of fecal incontinence while on active duty or within one year of separation from military service. The VA examiner also opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. He stated as rationale that review of the medical record shows the Veteran was diagnosed with a duodenal ulcer and underwent a vagotomy, vagectomy, pyloroplasty and tube gastrotomy in 1979 and recovered without residual. He developed some fecal leakage and diarrhea after meals twenty-five years later. The physical examination showed no pathology with normal sphincter function and normal colonoscopy. Medical literature does not report a gap of twenty-five years and the development of "dumping syndrome." The examiner proceeded to explain the mechanisms of dumping syndrome. He concluded that medical literature and review of the medical record, including STRs, does not support a physiologic, biomechanical, or anatomic mechanism for duodenal ulcer to cause or permanently aggravate fecal incontinence twenty-five years later beyond its natural progression. The February 2021 Board remand instructions specifically instructed the examiner to comment on the Veteran's March 2011 testimony that he experienced fecal incontinence prior to his in-service ulcer surgery when opining whether it is at least as likely as not that the Veteran's fecal incontinence is etiologically related to his period service. The examiner was 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. Additionally, for the secondary service connection and aggravation medical opinions, the February 2021 Board remand instructions asked the examiner 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. Here, the February 2021 VA examiner did not include any discussion regarding the Veteran's and his fiancé's March 2011 testimony that he experienced fecal incontinence prior to his in-service ulcer surgery, nor 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. In this regard, the Board finds that there has not been substantial compliance with the February 2021 Board's remand directives. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, in accordance with Stegall, remand for an addendum VA medical opinion is necessary for full compliance with the Board's prior remand. 2. Entitlement to service connection for depression, including as secondary to fecal incontinence 3. Entitlement to a TDIU The Board finds that the claims for entitlement to service connection for depression, to include as secondary to fecal incontinence, and entitlement to a TDIU are inextricably intertwined with the claim remanded herein. Hence, these issues are not yet ripe for appellate review and must be deferred pending re-adjudication of the remanded claim. See 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); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Once the above has been completed, obtain an addendum opinion from the VA provider who issued the February 2021 medical opinion to address the claim for service connection for fecal incontinence (or if no longer available, an appropriate replacement). The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fecal incontinence had its onset in service or was otherwise incurred in service? The examiner should specifically comment on the Veteran's and his fiancé'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 complaint 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 or aggravated by, or a result of a residual of his service-connected ulcer condition with partial gastrectomy? The examiner should note and consider any residuals related to the Veteran's service-connected ulcer condition since separation from service. The examiner should specifically comment on the Veteran's and his fiancé's March 2011 testimony that his fecal incontinence worsened after his in-service ulcer. 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. Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.