Citation Nr: 1308063 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 07-13 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for prostate disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1969 to August 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in dated May 2005 and November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2009 and August 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In September 2009, the Veteran testified at a personal hearing before the undersigned, sitting at the RO. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board's review of the record indicates that another remand is necessary. Specifically, there are outstanding VA treatment records noted in the claims file. Further, the Board requires clarification of the opinions provided by a September 2011 VA examiner. With regard to the treatment records, the Board notes that in a September 2011 rating decision unrelated to the claims on appeal, the evidence considered includes VA treatment records dated from August 2010 through December 2010. The most recent VA treatment note in the claims file is dated in August 2010. The outstanding treatment notes are from the Tampa VA Medical Center (VAMC). Therefore, the Board determines that outstanding treatment notes dated from August 2010 forward should be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Additionally, the Board determines that the most recent VA opinion is inadequate. In August 2011, the claim was remanded so that an opinion could be obtained with respect to whether the Veteran's prostate disability was a result of his presumed herbicide exposure or his service-connected diabetes mellitus. These opinions required a rationale. While the Veteran was afforded another VA examination in September 2011, the Board determines that the rationales for the negative opinions are inadequate. Specifically, the opinion states that review of the Veteran's service treatment records indicated no diagnosis of a prostate disability and therefore, it is less likely as not that the Veteran's claimed prostate disability was caused by military service to include in-service herbicide exposure. However, the lack of a diagnosis in service is not a sufficient rationale for a negative opinion. See 38 C.F.R. § 3.303(d). With regard to the opinion as to a relationship between the Veteran's service-connected diabetes mellitus and his prostate disorder, the examiner stated that the cause of BPH is not well understood and that although there are several theories which suggest that diabetes is a risk factor for BPH, there is no strong evidence for an association between diabetes and BPH across measures more specific to BPH (i.e., prostate volume, PSA, and peak urinary flow rate). Therefore, the examiner concluded that the presence of diabetes may be less related to prostate growth and more related to the dynamic components of lower urinary tract function. However, this opinion is little more than speculative, and the rationale includes no explanation for the speculative nature of the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The relationship need not be medically conclusive, but only have at least a 50 percent probability of existing. For these reasons, the Board determines that another opinion is necessary. The Veteran's claim of entitlement to TDIU is inextricably intertwined with the other pending claims on appeal. In other words, if service connection for the claimed disability is granted, this will impact VA's analysis of the TDIU 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). Therefore, the Board will defer consideration of the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all VA treatment records from the Tampa VAMC dated from August 2010 forward. All requests and responses, positive and negative, must be documented in the claims file. 2. Refer the claims folder to the examiner who conducted the September 2011 VA prostate examination. The Veteran need not be reexamined. The examiner is requested to review the claims folder and the September 2011 VA examination report. The examiner is asked to review the Veteran's VA claims folder including a copy of this remand and to provide an opinion, with supporting rationale, as to whether it is as likely as not that the Veteran's currently diagnosed prostate disability is related to his military service, to include in-service herbicide exposure; or whether the prostate disability is proximately caused or aggravated by the service-connected diabetes mellitus. The examiner is asked to address this question in an addendum. A complete rationale must be provided for the opinion offered. If the physician finds that he cannot answer the questions posed without examining the Veteran, this should be scheduled. If the examiner who conducted the September 2010 VA examination is not available, then the Veteran should be scheduled for a VA prostate examination with a physician with appropriate expertise, who is asked to address the same questions posed above. The examiner is advised that the mere lack of a prostate disorder in service does not preclude service connection on a direct basis. Service connection may be granted for a disability first diagnosed after service; therefore, the rationale for any negative opinion must be more than a statement that the prostate disorder did not exist in service. Additionally, if the examiner finds that an opinion cannot be formed without speculation, the examiner must provide an explanation as to why that is the case. If the examiner consults outside sources, i.e., other physicians or medical literature, the examiner should identify those sources. 3. After undertaking any additional development deemed necessary, and if warranted by the evidentiary posture of the case, the AOJ should then readjudicate the Veteran's claims. If the adjudication results in service connection of any disability or if the status of any service-connected disability has changed during the course of the appeal, consideration should be given to whether an examination is necessary to obtain the medical information required to address the TDIU claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. 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). 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. 2012). _________________________________________________ L. M. BARNARD Acting 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).