Citation Nr: 1302443 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 09-35 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether the severance of service connection for prostate cancer effective as of August 1, 2007 was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from April 1970 to April 1972. He served in the Republic of Vietnam. The Veteran is the Appellant in the instant appeal. In October 2006, the Houston, Texas, Regional Office (RO) proposed to sever service connection for prostate cancer. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 RO decision which, in pertinent part, implemented the proposed severance effective as of August 1, 2007. The Board has reviewed both the Veteran's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In this case, service connection for prostate cancer was granted in an October 2005 rating decision, which relied on a VA outpatient treatment notation of "Active Problems" that included a purported diagnosis of carcinoma in situ of prostate-high grade prostatic intraepithelial neoplasia, indicated to have been diagnosed on May 31, 2005. No biopsy results were indicated or provided. A subsequent VA (QTC) examination report in September 2005 relied on this May 2005 VA outpatient treatment entry as indicating that the Veteran had been diagnosed with prostate cancer, and by biopsy, even thought the QTC examination did not diagnose prostate cancer, instead diagnosing a precancerous condition in the prostate. Private treatment records from Urology Associates of Texas reflect a genitourinary disorder, but does not include history or findings of prostate cancer. Evidence of record subsequent to the October 2005 rating decision includes VA treatment records including prostate biopsy and pathology reports, private treatment record, and reports of VA urological VA examination for compensation purposes. The documentation does not contain a definite diagnosis of prostate cancer. A November 2005 VA prostate biopsy reported revealed "no evidence of malignancy." A June 2006 VA prostate biopsy reported revealed "no evidence of malignancy." The report of a September 2006 VA examination for compensation purposes states that: The specific opinion I have been asked to give, is there a firm diagnosis of prostate cancer. The answer is NO. The evidence all indicates that the patient has had repeated, serial biopsies and these have indicated PIN (prostatic interplasia neoplasia), which is not cancer, and atypical cells which the faculty conference felt did not rise to the level of being called a cancer . . . So, in our opinion, based on the evidence available to us, this man does NOT have cancer. In October 2006, the RO proposed to sever service connection for prostate cancer upon its determination that there was never a diagnosis of prostate cancer. In May 2007, the RO effectuated the proposed severance as of August 1, 2007 due to the lack of diagnosis of prostate cancer. The Veteran asserts that severance of service connection for prostate cancer was improper because he has prostate cancer. He asserts that the clinical evidence of record establishes that he has prostate cancer. The partial results of a March 2008 magnetic resonance imaging (MRI) study of the prostate from M. Berger, M.D., states that the Veteran had been referred by R. Vergel De Dios, M.D. Dr. Berger wrote that "multiple foci are more suggestive of prior biopsy sites in the left peripheral zone, but a multi-centric malignancy is not excludable." The Board notes that only page three of the study is of record, which includes only item number 7; items number 1 through 6 were not provided. Clinical documentation from Dr. De Dios is not of record. Given that the March 2008 MRI study suggested it could not rule out the presence of prostate cancer, the Board finds that a VA oncological evaluation would be helpful in resolving the question of whether the Veteran has prostate cancer or chronic residuals thereof. Service connection will be severed only where evidence establishes that the award of service connection was clearly and unmistakably erroneous with the burden of proof being upon VA. A change in diagnosis may be accepted as a basis for a severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. 38 U.S.C.A. § 5112(b)(6) (West 2012); 38 C.F.R. § 3.105(d) (2012). The United States Court of Appeals for Veterans Claims (Court) has directed that a severance decision under 38 C.F.R. § 3.105(d) focuses on whether the current evidence establishes that service connection is clearly erroneous; hence, the evidence is not limited to the law and the record that existed at the time of the original decision, severance may be based on a change in diagnosis, and VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his claimed prostate cancer, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact M. Berger, M.D., R. Vergel De Dios, M.D., and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. Dr. Berger should be specifically requested to provide pages 1 and 2 of the March 2008 MRI study (findings or images numbered 1 through 6), as well as all history, outpatient notes, findings, and other associated notes with the March 2008 MRI study of the prostate. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran that is not already of record. 3. Then schedule the Veteran for a VA oncology examination for compensation purposes conducted by a physician in order to assist in determining whether the Veteran has prostate cancer or any chronic residuals thereof. All indicated tests and studies should be accomplished and the findings then reported in detail. A) The VA oncology examiner should expressly state whether the Veteran has prostate cancer or any chronic residuals thereof. B) If the VA oncology examiner assesses that the Veteran has not had prostate cancer at any time, the examining physician should make a statement certifying that the Veteran does not have prostate cancer. Such certification should be accompanied by a summary of the facts, findings, and reasons supporting the conclusion, including the following: i) the validity of the basis of the May 31, 2005 diagnosis, including whether the diagnosis was based on biopsy, and ii) the significance of the March 2008 MRI report that included Dr. Berger's comment that "multiple foci are more suggestive of prior biopsy sites in the left peripheral zone, but a multi-centric malignancy is not excludable." All relevant medical records, including the March 2008 MRI study and those in the claims folder, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance in this case. 4. Then readjudicate the issue of severance of service connection for prostate cancer. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).