Citation Nr: 1111889 Decision Date: 03/24/11 Archive Date: 04/06/11 DOCKET NO. 03-04 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a chronic genitourinary disorder. REPRESENTATION Veteran represented by: Brian J. Faulkner, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from August 1943 to May 1946. He was born in 1925. The appeal has been advanced on the Board's docket due to the Veteran's advanced age pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2010). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In May 2004, the Board denied entitlement to service connection for a genitourinary disorder. The Veteran then filed an appeal with the U.S. Court of Appeals for Veterans Claims (Court). In March 2005, the Court granted a Joint Motion to remand the matter to the Board, with instructions in the Joint Motion. In August 2005, the Board remanded the case to satisfy the mandates of the Court order. In July 2007, the Board denied entitlement to service connection for genitourinary disorder. The Veteran then again filed an appeal with the Court. In October 2008, the Court granted a Joint Motion to remand the matter to the Board, with instructions in the Joint Motion. In July 2009, the Board remanded the case to satisfy the mandates of the Court order. The Veteran has been represented by Attorney Jenny Y. Twyford before VA throughout much of his appeal. See VA Form 21-22a dated April 28, 2005. Attorney Brian J. Faulkner represented the Veteran before the Court. The record reflects that the Veteran was notified that his case had been returned to the Board following the October 2008 Court Order granting the Joint Motion for Remand in March 2009 and a copy of the letter was sent to Attorney Twyford. However, on June 11, 2009, Attorney Faulkner submitted a letter, along with additional evidence, stating that Attorney Twyford was no longer representing the Veteran. He explained that he was now engaged to represent the Veteran during his appeal. He submitted a completed VA Form 21-22a signed and dated by the Veteran which appointed him as his accredited representative before VA. Attorney Twyford, in a January 2011 letter, advised VA that the Veteran had acquired another attorney and she was no longer representing him in the appeal. She attached a January 2011 letter from the Veteran stating that he was revoking Attorney Twyford's representation of him in his VA claim, effective immediately. She asked that VA update its records to reflect the change of representation. In consideration of the foregoing, the Board has identified Attorney Faulkner as the Veteran's representative in the current appeal, on the first page of the present decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the delay, a review of the evidentiary record reveals that this case must again be remanded for further evidentiary development and to ensure due process. As discussed above, the Veteran's attorney submitted additional argument and evidence on his behalf in June 2009. The evidence consisted of a medical opinion reportedly from the Veteran's caregivers, C.O. A.P.M., and Dr. J.W., M.D. In the 90-day Letter Response Form signed by the Veteran and Mr. Faulkner after the Court's remand, it is requested that this case be remanded to the RO for review of this newly submitted evidence. Although the Board previously remanded this case in July 2009, after the newly submitted evidence was received, there is no indication that this evidence has been initially considered by the RO. While the RO generally wrote that the claim had been considered based on all the evidence of record in the Adjudicative Actions portion of the September 2009 Supplemental Statement of the Case (SSOC), the newly submitted evidence is neither mentioned nor discussed in any way in the reasons and bases portion. Thus, because the Veteran has specifically asked to have his case remanded to have the RO review the additional evidence in the first instance and there is no indication that such consideration has been accomplished, the Board must remand this case to the RO for its due consideration and the issuance of a SSOC reflecting such consideration with respect to the issue on appeal. See 38 C.F.R. § 20.1304(c). In addition, the Board notes that the July 2009 remand was done in order to schedule the Veteran for a medical examination and to obtain a medical nexus opinion in connection with his claim. Such examination was performed in August 2009. However, upon review, we find that the opinion provided by the examiner is not adequate. Although the examiner confirmed review of the claims folder, the examiner based his opinion on the fact that there was no evidence of any "G-U" (genitourinary) disorder in service or in medical records prior to 2000; that, however, does not accurately reflect the evidence of record. Indeed, the record reflects that, on December 28, 1953, the Veteran filed a VA Form 10-P-10, an Application for Hospital Treatment or Domiciliary Care" with VA in Jackson, MS. He gave a history of recurrent pain in the right lower abdomen. He had had no nausea, vomiting, or diarrhea. It was noted that he had given a history of having been treated by two local urologists for "hypertrophy or infection of his prostate". He was referred to the Urology Department, which noted normal examination findings but indicated that "chronic prostatitis" was found. It was recommended that he receive treatment from his local physician and that hospitalization was not required from a urological standpoint. This evidence was not discussed by the 2009 VA medical examiner. Also, the claims folder contains records of the Veteran's evaluation and treatment for prostatic hypertrophy, prostatitis, and urinary retention by private urologists from July 1989 to December 2003, including records of his undergoing a transurethral resection of the prostate (TURP) in March 2000. Further, there is lay evidence of record asserting that the Veteran has had prostate problems since service that was not discussed by the examiner. Because the VA medical examiner's opinion is based on an inaccurate factual premise as it relates to the presence of medical evidence of a genitourinary disorder prior to 2000, and the examiner did not discuss the lay evidence of record asserting a continuity of genitourinary symptoms since service, we must remand for a supplemental medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Forward the claims folder to the August 2009 VA examining provider (or another appropriate medical professional), to obtain a medical nexus opinion, without additional examination, for the Veteran's claimed genitourinary disorder. If another medical examination is deemed appropriate in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in rendering his or her opinion. In addressing the questions below, the examiner/reviewer's opinion should be informed by a review of the Veteran's medical history and findings as documented upon any prior medical examination or treatment. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of etiology as related to service. a. Based on review of the claims folder, the examiner/ reviewer must state whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's genitourinary disorder was caused by, or was initially manifested during, the Veteran's active military service, to include consideration of any symptomatology shown therein or any incident or event therein. The examiner/reviewer must provide a supporting rationale for the opinion expressed. The examiner must further confirm that the claims folder has been reviewed. b. In the report, the examiner/reviewer should provide a thorough discussion of the Veteran's medical history as it pertains to his claimed genitourinary disorder and specifically discuss and/or address the following items in rendering his or her opinion regarding whether the claimed disorders are causally or etiologically related to service: (i) the records in 1953 wherein the Veteran reported having been treated by local urologists for "hypertrophy or infection of his prostate" and the urology consult indicating that "chronic prostatitis" was found on examination; (ii) medical records from July 1989 to December 2003 noting evaluation and treatment by private urologists; (iii) the medical opinion submitted in June 2009 as affected by the previous items; and (iv) the written lay statements of the Veteran and his friends, to include the January 2001 statement of his friend, J.B.B. c. The credibility of the lay statements as it relates to the report of continuity of symptoms of a genitourinary disability since service must be addressed, in light of the medical history and other relevant evidence included in the claims folder. The examiner/reviewer must further confirm that the claims folder has been reviewed. d. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. e. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner/reviewer should clearly and specifically so specify in the report, and explain why this is so. 2. Thereafter, readjudicate the Veteran's claim, with particular consideration and discussion of the evidence received on behalf of the Veteran in June 2009. If any benefit sought on appeal remains denied, provide the Veteran and his attorney with an SSOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue, with an appropriate period of time allowed for response by the Veteran and/or his attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to obtain additional development and to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of th1e Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).