Citation Nr: 23020189 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 19-09 814 DATE: March 31, 2023 REMANDED Entitlement to service connection for a bladder disorder is remanded. Entitlement to service connection for a bowel disorder is remanded. Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder is remanded. INTRODUCTION The Veteran served honorably in the U.S. Navy from September 2003 to July 2014. When this case was previously before the Board in February 2020, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay is quite unfortunate, the Board finds further development is required before the Veteran's claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Initially, the Board notes the Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the February 2020 remand, the RO was instructed to obtain competent examinations and medical opinions addressing the Veteran's claims for bowel and bladder disorders, which the Veteran has asserted were either incurred in service or caused by his service-connected lumbar spine disability. The Veteran underwent VA examinations in February 2021. During those examinations the examiner diagnosed the Veteran with irritable bowel syndrome (IBS), but concluded the Veteran did not have a bladder disability. Curiously, the examiner did note the Veteran's reports of both urinary urgency, as well as periods of a decreased urge to urinate. The examiner did not explain how or why these manifestations did not constitute a bladder disability. With respect to the Veteran's bowel disability, the examiner indicated the Veteran's in-service bowel disability was "acute only," and as such, appears to have based her negative direct and secondary medical opinions on this finding. However, the examiner failed to provide any opinion or explanation as to the etiology of the diagnosed IBS. Noting clear deficiencies in the examiner's findings and opinions, in March 2021 the RO requested an addendum. In particular, the examiner was asked to review the Veteran's file, and state whether he has experienced a bowel or bladder disability at any time during the pendency of the appeal. Unfortunately, the examiner acknowledged she was unable to review the Veteran's claim file, and as such, she was unable to competently report on the clarifications requested. Based on these deficiencies, the Board finds the February 2021 examination reports are not in compliance with the prior remand directives. Therefore, a remand is required. Further, the Board also observes the Veteran's DD-214 and official military personnel file (OMPF) confirm his foreign sea service. However, the records do not specifically indicate whether his sea service may have included service in the Southwest Asia theater of operations which include Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea. If so, the Veteran may be presumptively entitled to service connection for his diagnosed IBS. As such, on remand the RO should initiate all indicated development to confirm whether the Veteran served in the Southwest Asia theater of operations. Finally, the Board notes that by way of a June 2021 correspondence, the Veteran's attorney asserted a recent February 2021 VA mental disorders examination was insufficient, because the examiner failed to assess the Veteran's reported posttraumatic stress disorder (PTSD). Here, the Board notes the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). For these reasons, the Board finds the Veteran must undergo a comprehensive VA PTSD examination to determine whether he may have additional psychiatric manifestations which are attributable to a service-connected posttraumatic stress disorder. Finally, the Board notes the Veteran's attorney has also indicated the Veteran experienced a traumatic brain injury (TBI) in service, but has not initiated a formal claim for that disability. On remand the RO should invite a claim for this disability on the appropriate standard VA form, as the Board notes this condition could potentially be intertwined with the Veteran's acquired psychiatric disorder. Accordingly, the case is REMANDED for the following actions: 1. Conduct all indicated development to corroborate the Veteran's service in the Southwest Asia theater of operations. 2. The RO should also notify the Veteran and his representative that in order to submit a claim for TBI, he should do so on the appropriate VA form. 3. Then, afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to determine the nature and etiology of the Veteran's claimed bladder and bowel disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should opine as to whether any bladder or bowel disability that has been present at any time during this appeal period (July 2014 to present), at least as likely as not: a) was incurred in service or is otherwise etiologically related to the Veteran's active service; b) was proximately due to his service-connected IVDS with lumbosacral strain and degenerative disc disease; or c) was aggravated to any degree by his service-connected IVDS with lumbosacral strain and degenerative disc disease. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case and state whether the inability to provide the required opinions is based on a lack of knowledge among the medical community at large. 4. Also, afford the Veteran a VA examination by a VA psychiatrist or psychologist to determine the etiology and severity of all acquired psychiatric disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the review of the Veteran's pertinent history and the examination results, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. A diagnosis of PTSD due at least in part to the Veteran's military experiences should be confirmed or ruled out. If the examiner determines PTSD has not been present during the period of the claim, he or she should explain why a diagnosis of PTSD is not warranted. If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis. With respect to each acquired psychiatric disorder, other than PTSD, that has been present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disorder originated in service or is otherwise etiologically related to service. In this regard, the examiner must discuss and consider the Veteran's competent lay statements and assume such statements are credible for purposes of the requested opinions. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Finally, undertake any other development determined to be warranted, to specifically include consideration of whether additional VA examinations and/or comorbid medical opinions are warranted should the Veteran submit a claim for TBI. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case, and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.