Citation Nr: 1326972 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-05 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a prostate disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to December 1957. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to service connection for a prostate disorder is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND When the Board last reviewed the case in April 2012, it noted the Veteran's November 2010 testimony before the Board, that he went on sick call for his prostate disorder while in service. As such, the Board directed the RO to conduct a search for any and all available sick and morning reports pertaining to the Veteran's active service aboard the USS NEWPORT NEWS. 38 C.F.R. § 3.159(c) (2) (2012). The RO requested copies of the deck logs and sick reports for the USS NEWPORT NEWS from the National Archives & Records Administration. In a June 2013 response to the RO's request, the National Archives & Records Administration indicated that the approximate dates that the Veteran reportedly went on sick call were necessary for such request. In a May 2013 letter to the RO, the Veteran asserted that he went to sick call during service in approximately June 1957 or July 1957, while aboard the USS NEWPORT NEWS. VA has a duty to assist claimants in obtaining evidence pertinent to their claims, thus, the RO must provide the National Archives & Records Administration with the aforementioned dates during which the Veteran reportedly went to sick call aboard the USS NEWPORT NEWS. Id. In addition, when the Board last reviewed the case, it also noted that further explanation and rationale was needed by the VA examiner who conducted the February 2011 VA examination and October 2011 addendum. The VA examiner based the opinion that the Veteran's prostate disorder pre-existed military service solely on the Veteran's lay statements and not on a medical diagnosis or treatment of a prostate disorder prior to service. The Board found that opinion was not clear and unmistakable evidence sufficient to rebut the presumption of soundness, as the examiner's conclusion was based exclusively on post-service evidence, noting the Veteran's post-service statements that his prostate disorder existed prior to service. See Miller v. West, 11 Vet. App. 345, 348 (1998). Thus, on remand, the VA examiner who provided the February 2011 VA examination and October 2011 addendum was to provide additional explanation and rationale for the opinion that the Veteran's prostate disorder pre-existed military service and was not aggravated thereby. The Board also directed the examiner to provide an opinion as to whether the Veteran's prostate disorder was directly related to service. In a February 2013 addendum opinion, the VA examiner who conducted the February 2011 VA examination and October 2011 addendum noted that he did not review the Veteran's Virtual VA records. The examiner noted the Veteran's reported history of urinary symptoms that he experienced prior to service, which were similar to some of the symptoms that he currently experienced. The examiner determined, that based upon the Veteran's reported symptoms, that the Veteran most likely had a diagnosis of urethritis prior to service; although, the examiner also noted that the Veteran's induction physical examination was negative for such complaints or diagnosis. The examiner noted that there was no clinical evidence or factual record documenting the onset of the Veteran's urethritis prior to service. The examiner noted that there was no clinical evidence or factual record documenting treatment for urinary symptoms during service; however, he did note the Veteran's report of treatment during service by friends who were hospital corpsmen for such symptoms. Based on the above, the examiner opined that the Veteran's current prostate disorder was "less likely than not" permanently worsened by his service. The February 2013 VA opinion is inadequate for the purposes of adjudicating the appeal. The VA examiner, again, based his opinion that the Veteran's prostate disorder pre-existed military service solely on the Veteran's lay statements, and not on a medical diagnosis or treatment of a prostate disorder prior to service. That opinion, and the bases thereof, is not clear and unmistakable evidence sufficient to rebut the presumption of soundness. See Miller, 11 Vet. App. 345, 348 (1998). Moreover, the examiner accepted the Veteran's statements regarding his pre-service symptoms; however, he disregarded the Veteran's statements regarding his in-service treatment by corpsmen for the same symptoms. Finally, the examiner failed to provide the requested opinion as to whether the Veteran's current prostate disorder was directly related to his active service. Accordingly, a new medical examination and opinion by another VA examiner are necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there has not been substantial compliance with the April 2012 remand directives, the case must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all of the Veteran's sick/morning reports during his active duty service. Specifically, the RO must provide the National Archives & Records Administration with the time period of June 1, 1957 through July 31, 1957, during which the Veteran reportedly went to sick call aboard the USS NEWPORT NEWS. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine whether any current prostate disorder is related to his military service. The Veteran's claims file and all electronic records, to include on Virtual VA, must be made available to the examiner, and the examiner must specify in the report that these records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies must be accomplished. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently diagnosed prostate disorder, is related to the Veteran's active military service. The examiner is instructed that as a genitourinary disorder, to include a prostate disorder, was not shown on his military service entrance examination, a genitourinary disorder is presumed not to have preexisted military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained that shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If the benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).