Citation Nr: 21032799 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-37 256 DATE: May 28, 2021 REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for rectal sphincter insufficiency with involuntary bowel movements/urgency (fecal incontinence condition), to include as secondary to a lower back condition, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1971 to September 1978. These matters come before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in March 2019. 1. Entitlement to service connection for a lower back condition is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction has not substantially complied with the March 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in March 2019, the Board instructed the AOJ to obtain an opinion regarding the nature and etiology of the Veteran's lower back condition. In forming the opinion, the examiner was instructed to specifically discuss the Veteran's in-service complaints of back pain and competent reports of back pain since separation from service, as well as a June 2013 VA examiner's positive nexus opinion. In December 2019, the Veteran was afforded a VA examination in which the examiner opined that the Veteran's lower back condition was most likely due to normal aging and wear and tear from activities and occupations after active duty service. The examiner acknowledged the Veteran's in-service complaints of back pain and reports of post-service back pain, but noted that the Veteran's service treatment records (STRs) did not contain any chronic long-term back issues, and his post-service medical records showed work-related back issues in 1991. However, while the examiner noted the Veteran's reports of post-service back symptoms, the examiner did not otherwise discuss such reports. Likewise, the examiner did not discuss the June 2013's positive nexus opinion except as it pertained to the Veteran's claimed fecal incontinency condition. See December 2019 VA Back Conditions Disability Benefits Questionnaire (DBQ); December 2019 VA Medical Opinion DBQ. Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is warranted to obtain an opinion that substantially complies with the Board's remand directives. See Stegall v. West, supra. 2. Entitlement to service connection for fecal incontinence condition, to include as secondary to a lower back condition, is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed fecal incontinence condition. In December 2019, the Veteran was afforded a VA examination, in which the examiner opined that the Veteran's claimed condition was less likely than not related to his active duty service. In support of this opinion, the examiner stated that the Veteran's medical records did not contain any documentation of a chronic condition, and the Veteran reported that his symptoms did not begin until 1990. See December 2019 VA Rectum and Anus Conditions DBQ; December 2019 VA Medical Opinion DBQ. However, the Veteran's medical records indicate that he has reported that his symptoms began in his twenties. See Dallas VA Medical Center (VAMC) records, received November 2016, September 2017, November 2017, November 2017, and October 2019 in CAPRI. Additionally, in a June 2013 VA examination report, the Veteran reported that he experienced occasional incontinence beginning in 1975. See June 2013 VA Intestinal Conditions DBQ. As such, the opinion appears to be based, in part, on an inaccurate factual premise and therefore is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, the Board finds this matter to be inextricably intertwined with the Veteran's claim of entitlement to service connection for a lower back condition, which is remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that, should the Veteran's lower back condition be found to be related to his active duty service, a remand would be necessary to obtain an adequate opinion regarding service connection on a secondary basis. As discussed above, the Veteran was afforded a VA examination in December 2019, in which the examiner opined that the Veteran's fecal incontinence condition was less likely than caused by his lower back condition. In support of this opinion, the examiner stated that the Veteran's lower back condition was not severe enough to cause the condition as an October 1994 CT scan did not show any spinal cord compression or stenosis. See December 2019 VA Rectum and Anus Conditions DBQ; December 2019 VA Medical Opinion DBQ. However, the October 1994 CT scan indicates annular bulges and disc protrusions, at L5-S1 and L4-5, that touch and efface the thecal sac. See Buckner Medical Clinic records, received March 1995. The examiner did not elaborate as to why such did not amount to spinal cord compression. As such, the Board finds the examiner's determination to be conclusory, and, therefore, inadequate. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. Stefl v. Nicholson, 21 Vet. App. 102, 124 (2007). In addition to clear conclusions with supporting data, a medical opinion must contain a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 201 (2008). Moreover, the examiner did not offer an opinion as to whether the Veteran's fecal incontinence condition was more likely than not aggravated by his lower back condition, and, therefore, the opinion cannot be deemed adequate to the extent it addresses this theory. See El-Amin v. Shinseki, 21 Vet. App. 303, 312 (2007). For these reasons, a remand is necessary to obtain an adequate VA opinion regarding the nature and etiology of the Veteran's claimed acquired psychiatric condition, to include mild neurocognitive disorder, depressive disorder, and anxiety. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including records relating to treatment at Dallas VAMC from September 2019 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of his claimed lower back condition. The entire claims file must be provided to, and reviewed by, the examiner. Any indicated tests, studies, or evaluations, to include an MRI or CT scan, should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For each diagnosed BACK CONDITION, to include any radiculopathy associated therewith, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's lay history; ii. The Veteran's June 2013 report that he experienced mild ongoing back pain following an in-service injury in 1975; iii. The June 2013 VA examination and etiological opinion, including the August 2013 addendum thereto. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 4. After completing the development in Section One above, and any additional development warranted by the record, obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed RECTAL SPHINCTER INSUFFICIENCY WITH INVOLUNTARY BOWEL MOVEMENTS/URGENCY. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed rectal sphincter/ gastrointestinal condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) If, and only if, a lower back condition is found to be related to the Veteran's active duty service in Section Three above, provide the following opinions for each diagnosed rectal sphincter/gastrointestinal condition: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition was caused by a service-connected condition, to include any condition found to be related to service in Section Three above. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition, to include any condition found to be related to service in Section Three above. (d.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. Reports of diarrhea in the Veteran's service treatment records; ii. The Veteran's lay history; iii. The Veteran's June 2013 report that he began experiencing occasional fecal incontinence in 1975; and iv. The June 2013 VA examination and etiological opinion, including the August 2013 addendum thereto. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.