Citation Nr: 24004591 Decision Date: 01/30/24 Archive Date: 01/30/24 DOCKET NO. 19-28 798 DATE: January 30, 2024 REMANDED The appeal for a compensable disability rating for service-connected hematuria (claimed as blood in urine and internal bleeding urinary tract) is remanded. The appeal for a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1985 until his honorable discharge in April 1993. By way of background, the Veteran filed a claim for an increased disability rating for his service-connected hematuria on June 17, 2014. A Regional Office of the United States Department of Veterans Affairs (VA) continued his noncompensable disability rating in a May 25, 2016, Rating Decision. The Veteran appealed that decision to the Board of Veterans' Appeals (Board). In a March 5, 2020, Order, the Board found that the record raised to issue of entitlement to a total disability rating based on individual unemployability (TDIU). It remanded the claim for an increased disability rating and the issue of TDIU benefits to the VA Regional Office for additional development. As pertinent here, the Board directed the VA Regional Office to obtain a VA medical opinion addressing whether the Veteran's newly reported voiding dysfunction is related to his hematuria. On remand, the VA Regional Office obtained an opinion from a VA-contracted medical examiner on May 24, 2020. The examiner determined that "[m]icroscopic hematuria does not cause a voiding dysfunction." Following return of the appeal to the Board, the Board found that opinion was inadequate. In a July 26, 2023, Order, the Board concluded that "the examiner did not address the . . . contention that the voiding dysfunction may share an underlying cause with the service-connected hematuria." Thus, the Board remanded the appeal to the VA Regional Office to obtain a medical examination and medical opinion addressing "whether the Veteran's voiding dysfunction is caused by the same underlying pathology as the service-connected hematuria." The Board also remanded the issue of TDIU benefits as intertwined with the increased-rating claim. The appeal now returns to the Board after development by the VA Regional Office. For the reasons that follow, the Board finds the VA Regional Office has not substantially complied with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 371 (1998) (finding that remand by the Board "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders" and imposes on the Secretary a "concomitant duty to ensure compliance with the terms of the remand"). 1. The appeal for a compensable disability rating for service-connected hematuria (claimed as blood in urine and internal bleeding urinary tract) is remanded. The VA Regional Office obtained a VA-contracted medical examination on November 14, 2023. In that examination report, the examiner stated: "Symptoms have remained unchanged since last C&P exam 2020. There is no objective evidence in claims file of complications or renal dysfunction related to [service-connected] hematuria." This examination report and opinion do not answer the question posed by the Board, which was: "The examiner should determine whether the Veteran's voiding dysfunction is caused by the same underlying pathology as the service-connected hematuria." The Board did not ask for an opinion addressing whether the Veterans' voiding dysfunction was caused by his hematuria. In addition, the examiner did not consider or address the Veteran's lay statements of his voiding dysfunction. See Dalton v. Peake, 21 Vet. App. 23, 39?40 (2007) (a medical opinion is inadequate if it does not take into account a veteran's reports of symptoms and history, even if recorded in the course of the examination). Thus, remand is required for a new opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one."). 2. The appeal for a total disability rating based on individual unemployability is remanded. As the grant or denial of a compensable disability rating, and additional ratings, may reasonably affect the adjudication of TDIU benefits, the Board finds these issues to be inextricably intertwined. Thus, the claim for TDIU benefits must be remanded. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, "in the interests of judicial economy and avoidance of piecemeal litigation," claims that are "intimately connected" should be adjudicated together); Henderson v. West, 12 Vet. App. 11, 20 (1998). Accordingly, the matters are REMANDED for the following actions: 1. Obtain an opinion from the appropriately qualified clinician addressing whether the Veteran's asserted voiding dysfunction is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by the same underlying pathology as his service-connected hematuria. Please explain your opinion fully. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. In rending his or her opinion, the examiner MUST consider and address the following, in addition to any other relevant evidence: (a.) Medical literature submitted by the Veteran on December 3, 2019, from the Mayo Clinic, entitled "Blood in urine (hematuria)" (b.) The Veteran's lay statements regarding the nature and onset of his disability and voiding issues, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, may be considered an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, may be considered insufficient rationale. If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather than providing a conclusory opinion. For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statements, if any, affect the conclusion? If the examiner relies on medical treatises, the examiner should identify and discuss the treatises. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner must state 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 the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should identify what evidence is necessary to offer an opinion and why such evidence cannot be obtained. 2. Readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU benefits. ANTHONY C. SCIRE, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F. Sawka, 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.