Citation Nr: 1306165 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-16 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151, for prostate cancer. 2. Entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer. 3. Entitlement to special monthly compensation based on loss of use of a creative organ. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In May 2012, the Veteran and his spouse testified before the undersigned Veterans Law Judge sitting at the RO. The hearing transcript has been associated with the claims file. At such time, the Veteran submitted additional evidence with a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. A February 2013 review of the Virtual VA (VVA) paperless claims processing system reveals that VA/CAPRI records current to March 21, 2012, were associated with the VVA file in May 2012. The SSOC issued in May 2012 reflects consideration of those records. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, however, this action is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Veteran presently seeks to establish entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for prostate cancer. He also seeks entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation based on loss of use of a creative organ, both of which are essentially derivative claims of the 38 U.S.C.A. § 1151 issue; i.e., the outcome of both claims is necessarily dependent on the disposition of the 38 U.S.C.A. § 1151 claim See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Essentially, the Veteran maintains that his diagnosed prostate cancer resulted from being prescribed Testosterone Cypionate by VA for treatment of low testosterone. Evidence on file indicated that VA began treatment with Testosterone Cypionate injections in September 2005 and that such treatment continued until June 2008 when prostate cancer was diagnosed. VA records confirm that testosterone injections were ordered in September 2005 and that Testosterone Cypionate was one of the Veteran's regularly prescribed medications between at least December 2005 and May 2008. The Veteran underwent prostate cancer surgery in August 2008 at the Mayo Clinic Hospital. In hearing testimony provided in May 2012, the Veteran indicated that Dr. F. of the Mayo Clinic informed him that the testosterone shots accelerated the cancer (pg. 21). In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. See 38 C.F.R. § 3.358(b) (2012). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c)(1), (2) (2012). Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the appellant. 38 C.F.R. § 3.358(c)(3) (2012). Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Board observes that, to date, the Veteran has not been afforded a VA examination or opinion so as to determine whether he has any additional disability resulting from the testosterone treatment prescribed by VA, and whether any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA facility care or medical treatment. Also pertinent in this case are the issues of forseeability, and risk. Accordingly, the Board finds that a VA opinion is necessary for proper appellate review of the claim. VA records last printed on May 8, 2012, are on file and appear to be current through March 21, 2012. The Board observes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, for the sake of completeness, the AOJ should request all outstanding records of VA evaluation and/or treatment of the Veteran's prostate cancer and erectile dysfunction dated from March 21, 2012, forward. In addition, to ensure that all due process requirements are met, the AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The Veteran should also be specifically advised that in support of his claim, he may obtain and associate with the file a medical statement from Dr. F. of the Mayo Clinic to the effect that testosterone shots accelerated the cancer, as discussed at the 2012 Board hearing (p. 21). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify or submit, any additional records or evidence relating to his 38 U.S.C.A. § 1151 claim, and his additional claims of entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer; and entitlement to special monthly compensation based on loss of use of a creative organ. All reasonable attempts should be made to obtain any identified records. If any records/evidence cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). The Veteran should also be specifically advised that in support of his claim, he may obtain and associate with the file a medical statement from Dr. F. of the Mayo Clinic to the effect that testosterone shots accelerated the cancer, as discussed at the 2012 Board hearing (p. 21). 2. Request all outstanding VA treatment records, as well as hospitalization and examination reports, dated from March 21, 2012, forward, for inclusion in the paper or virtual VA file, as appropriate. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining all outstanding records, the AOJ shall provide the claims file to an appropriately qualified VA examiner to review the claims file and provide opinions regarding the following matters. The need to examine the Veteran is left to the discretion of the medical professional selected to offer the opinions. (a) Does the Veteran at least as likely as not have additional disability, to include (i) prostate cancer and (ii) erectile dysfunction; as a result of treatment provided by VA for low testosterone levels in the form of testosterone injections and prescribed Testosterone Cypionate between September 2005 and May/June 2008? (In this regard, prostate cancer was diagnosed in June 2008). (b) If additional disability is shown, was such additional disability the result of, or caused by, a lack of proper care or negligent treatment on the part of VA caregivers? In other words, did any action or inaction by VA caregivers cause additional disability or constitute carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault? If so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? (c) If additional disability is shown, was the cause of the additional disability(ies) an event not reasonably foreseeable? In addressing the foregoing, the examiner must acknowledge and consider both the lay and clinical evidence pertaining to these matters. The examiner shall provide clear and complete medical reasoning and rationale (i.e. a discussion of the facts and the medical principles involved) for all requested opinions and findings, in a legible report. 4. The AOJ will then readjudicate the Veteran's claim of entitlement to compensation, under the provisions of 38 U.S.C.A. § 1151, for prostate cancer; followed by consideration of the derivative claims of entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer, and entitlement to special monthly compensation based on loss of use of a creative organ. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).