Citation Nr: 1320688 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-34 618 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for prostate cancer, including as secondary to postoperative benign prostatic hypertrophy (BPH)/prostatitis. 2. Entitlement to service connection for erectile dysfunction, including as secondary to postoperative BPH/prostatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1960 to January 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the St. Louis, Missouri RO. In February 2013, the Board remanded the matters for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND On review of the record, the Board finds that this matter must again be remanded for evidentiary development. In the previous [February 2013] remand, the Board found that an April 2009 VA medical advisory opinion and a September 2010 medical opinion, cumulatively, did not fully address the Veteran's secondary service connection theory of entitlement for prostate cancer (as neither gave an opinion regarding whether the prostate cancer was caused or aggravated by the service-connected postoperative BPH/prostatitis). The Board also noted on remand that there remained medical questions regarding the claim of service connection for erectile dysfunction as to whether a formal diagnosis was merited and whether any erectile dysfunction disability is related to either the Veteran's BPH or surgery for such. The Board remanded the matters on appeal to afford the Veteran a new VA examination and adequate medical opinion. Pursuant to the Board's February 2013 remand, the Veteran was afforded a VA examination in March 2013. Following a physical examination, the diagnoses included prostate cancer and erectile dysfunction (ED). The examiner opined that BPH is generally not considered related or a risk factor for prostate cancer, noting that there is a long period of time between observation of the Veteran's BPH and prostate cancer. The examiner opined that prostatectomy surgery did not contribute to the development of cancer. Regarding ED, the examiner opined that it can be related to or caused by prostate surgery, noting that the finding is immediate post-operative. The examiner noted that the Veteran stated he had normal erectile function for at least 3 years and partial function for another two years, then opined that the advent of prostate cancer has no relation to the Veteran's prior erectile dysfunction. The examiner opined that the prior diagnosis of BPH was less likely as not related to ED occurring years after prostate surgery, and the prior surgery for BPH was less likely as not related to ED occurring years after prostate surgery. It has been held that the term "not related" is insufficient to adequately address the notion of aggravation. No opinion was offered regarding whether either claimed disability was aggravated by the service-connected BPH/prostatitis or surgery for such. Notably, the March 2013 VA examiner did not complete the "Medical opinion for secondary service connection" section of the Disability Benefits Questionnaire regarding either of the Veteran's claims on appeal. Once VA provides an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate examination must support its conclusion with an analysis that can be weighed against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board therefore finds the March 2013 VA examination and medical opinion to be inadequate, and the February 2013 remand instructions were not fulfilled. It is well-established in case law that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). When the Board issues specific remand instructions, there generally is a reason for the specificity. Here, the actions previously sought by the Board are necessary for a proper adjudication of the Veteran's claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should return the claims file to the VA physician who conducted the March 2013 urological examination of the Veteran to determine conclusively the etiology of his prostate cancer and his claimed erectile dysfunction. The Veteran's claims file (including this remand) must be reviewed by the examiner. Based on a review of the record and the March 2013 examination of the Veteran, the examiner should provide opinions that respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's prostate cancer was aggravated by his service-connected BPH/prostatitis and/or the surgical treatment for such? (b) Is it at least as likely as not (a 50% or greater probability) that the Veteran's diagnosed erectile dysfunction was aggravated by his service-connected BPH/prostatitis and/or the surgical treatment for such? The examiner must explain the rationale for all opinions, commenting on any opinions in the record to the contrary and citing to supporting factual data and/or medical literature as appropriate. 2. The RO must ensure that the development sought is completed (there is an appropriate response to each request) and should then re-adjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant 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 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). _________________________________________________ George R. Senyk 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) (2011).