Citation Nr: 1331084 Decision Date: 09/26/13 Archive Date: 09/30/13 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, August 2011, and March 2013, 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 Veteran if further action is required. REMAND Regrettably, the Board's review of the post-remand record indicates that another remand is necessary. In the March 2013 remand, multiple opinions as to the etiology of the Veteran's were requested. A VA examiner was to be asked to opine 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 March 2013 VA opinion indicated that the Veteran's BPH is less likely as not a result of his military service, to include in-service herbicide exposure. In support of this opinion, the examiner noted while BPH affects PSA levels, it is not prostate cancer, which is the only disability presumed related to herbicide exposure. However, this opinion does not fully address the question posed as it finds that the BPH and PSA levels are not prostate cancer and, therefore, are not presumed related to herbicide exposure, but it does not provide a rationale for why the Veteran's prostate disability is not a result of military service on a direct basis. With respect to the question of secondary service connection, the examiner noted that PSA is a protein made solely by prostate cells so the antigen is highly specific for the prostate. Hence, only prostate conditions can affect PSA levels, and the Veteran's diabetes mellitus has no bearing on PSA levels. The examiner also stated that medical literature fails to show a relationship between diabetes mellitus and BPH. However, this opinion disregards the previous statement by the September 2011 VA examiner that there are several theories which suggest that diabetes is a risk factor for BPH. While a theory does not constitute proof, it does suggest that the medical literature does not entirely fail to show a relationship. Finally, the March 2013 remand specifically indicated that if the September 2011 VA examiner was not available to offer the requested opinions, the Veteran should be scheduled for another VA examination. The March 2013 VA examiner is not the same examiner from September 2011, but he did not examine the Veteran, which is noncompliant with the Board's remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For these reasons, the Board determines that yet another remand is necessary. The Veteran's claim of entitlement to TDIU remains 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. Schedule the Veteran for a VA examination to assess the etiology of his prostate disability. The claims file must be provided to the examiner for review, and the examination report must reflect that such review occurred. Upon review of the record and examination of the Veteran, the examiner must answer the following: a. Is it at least as likely as not that the Veteran's currently diagnosed prostate disability is related to his military service on a direct basis and irrespective of his exposure to herbicides? b. Is it at least as likely as not that the Veteran's prostate disability was caused by his service-connected diabetes mellitus? c. Is it at least as likely as not that the Veteran's prostate disability was aggravated by its normal progression by his service-connected diabetes mellitus? The examiner must address the apparent discrepancy between the statement that the medical literature fails to show a relationship between diabetes mellitus and BPH in March 2013 and the statement in September 2011 that there are theories with respect to such a relationship. The question of causation and aggravation must be address separately with separate rationales. A complete rationale must be provided for the opinion offered. 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. 2. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled VA examination must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report to the examination, the record must indicate whether the notification letter was returned as undeliverable. 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) (2013).