Citation Nr: 1313747 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-23 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a prostate disability with impotence, to include as due to herbicide exposure. 2. Entitlement to service connection for polyps, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 2011 and August 2012, the Board remanded this case for further evidentiary development and compliance with the Board's prior remand decision, respectively. The Veteran requested in June 2009 a hearing before the Board, but he cancelled that hearing request in April 2010. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). VA is not required to provide a medical examination in all cases; however, "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet .App. 46, 51-52 (2007). A medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 102, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); Green, 1 Vet.App. at 124. When an examination is provided, the examiner must support his or her conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl, 21 Vet.App at 124-25. Thus, "[a] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a) to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for proper appellate decision"); see also Green, 1 Vet.App. at 124 (holding that remand is appropriate where the Board relied on an inadequate examination report); 38 C.F.R. § 4.2 (2012). In this case, the Veteran seeks service connection for a prostate disability with impotence and colon polyps on both a direct basis and as secondary to herbicide exposure. Report of VA genitourinary examination dated in June 2011 reflects diagnoses for benign prostate enlargement, benign colon polyps, and erectile dysfunction. The examiner indicated that there was no prostate or colon cancer and no loss of use of a creative organ with medication, per this current examination. He opined that all three diagnoses were not likely related to the Veteran's active military service as they were not presumptive conditions for herbicide/Agent Orange exposure during Vietnam service. The Board remanded this case in August 2012. At that time, the Board instructed that the RO return the June 2011 VA examination report to the examiner for a new medical opinion based on all the evidence of record, to include private treatment record that were previously unavailable to him, and a complete rationale for that opinion. The examiner was instructed to provide an opinion on whether any shown condition was as likely as not related to the Veteran's service and whether any shown condition was as likely as not related to herbicide exposure. A detailed rationale for all opinions was requested. An addendum dated in August 2012 to the June 2011 report of examination restated the prior opinion and reasoning, noting review of the complete claims file to include the private treatment records. Having carefully reviewed the report of VA examination dated in June 2011 with the 2012 addendum, along with the Board's prior remand decisions, the Board finds that the medical opinion remains inadequate and, thus, there has not been substantial compliance with the Board's prior remand decisions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board requested, and seeks a medical opinion with a complete rationale on whether the conditions found on VA examination in June 2011 are directly related to the Veteran's military service or herbicide exposure in service without regard to the VA presumptive regulations governing service connection for certain diseases based on herbicide exposure. The examiner reasons that the disorders shown are not directly related to service or secondary to herbicide exposure/Agent Orange because the disorders are not among the listed presumptive diseases. The examiner's rationale is flawed. The statutory and regulatory provisions governing presumptive service connection for certain diseases deemed to be associated with herbicide exposure is a legal consideration rather than a medical consideration. The exclusion of a disability from the list of disabilities for which presumptive service may be assigned does not preclude service connection on a direct basis. As indicated the Board's prior remand decision, VA regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Stated differently, a regulatory presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. The Board seeks a medical opinion and explanation for that opinion based on, as appropriate, any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. Therefore, regrettably, remand is again necessary for an addendum to the prior VA examination report that provides a complete rationale for the opinions. It is noted that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall supra. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records. 2. Then, the August 2012 VA medical examination addendum should be returned to the physician for a medical opinion with a complete rationale. If the examiner is unable to provide the requested opinion, the claims folder should be forwarded to an appropriate VA health care professional to render an opinion. The claims file along with a copy of any pertinent evidence located in Virtual VA that is not in the claims file should be made available to and reviewed by the physician. A copy of Board's remand decision here should be made available to and reviewed by the physician to ensure that he understands the information sought by the Board and why his previous opinion with rationale was inadequate. In this regard, a supplemental opinion should be provided addressing the following questions: (a) Is it least as likely as not (50 percent probability or greater) that the Veteran has a current prostate disability that is related to his military service or secondary-caused or aggravated by in-service herbicide exposure. (b) Is it at least as likely as not that the Veteran's current colon polyps are related to his military service or secondary-caused or aggravated by in-service herbicide exposure. (c) Is it at least as likely as not that the Veteran's current erectile dysfunction is related to his military service or secondary-caused or aggravated by in-service herbicide exposure. Herbicide exposure is presumed and should be addressed. However, the physician should further consider whether the above conditions were incurred in or aggravated by service, other than by herbicide exposure. The examiner is advised the lack of inclusion of the claimed disabilities in the list of diseases presumed to be related to herbicide exposure does not necessary preclude a grant of service connection. The examiner should provide a detailed rationale for any opinion reached. That is, the physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions. 3. Then, the RO should review the medical opinion and rationale to ensure that all the requested information and an adequate supporting rationale is provided, or return for such. 4. Then, after ensuring any other necessary development has been completed, the RO or AMC should readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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. 2012). _________________________________________________ DAVID L. WIGHT 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).