Citation Nr: 1752279 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-06 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a prostrate disability, to include prostate cancer and/or benign prostatic hypertrophy (BPH). 2. Entitlement to service connection for erectile dysfunction (ED). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the United States Army from January 1968 to December 1969. The Veteran's service in the Republic of Vietnam has been confirmed and exposure to herbicides has been conceded. (See Rating Decision, February 4, 2014). This matter is before the Board of Veterans' Appeals (Board) from a November February 2014 decision of the Department of Veterans Affairs (VA), Regional Office (RO) in New York. The matter was remanded by the Board in September 2015. The Veteran initially requested a hearing, but withdrew his request in April 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Duty to Assist VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records (STRs) and other pertinent records, including those of his evaluation and treatment since service, as well as providing an examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran served in Vietnam between January 1968 and December 1969. His exposure to herbicides has been presumed. The Veteran stated that his medical conditions are a result of his exposure to Agent Orange while in service. He indicated that he has complained about his various conditions since 1983. The record shows that the Veteran received on-going treatment for his prostrate since at least 2009. (See Clinical progress notes, VA Medical Center (VAMC), Northport 2010). These progress notes show that the Veteran was diagnosed with benign hypertrophy (BPH). He was treated with levaquen and amoxicillin. In his Notice of Disagreement (NOD) of April 2014, the Veteran stated that he had complained since 1984, and that he was seen in 1985 in New York City. The record shows that a VA psychiatric treatment record from May 1984 is a part of the record, however, there is no indication of any other treatments or condition. With respect to private treatment records, VA must make "an initial request for the records and, if the records are not received, at least one follow-up request unless such a request would be futile." 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1) (2017). Remand is required to ascertain the existence of, and if they exist, obtain the medical records. BPH The VA examiner offered an opinion with respect to direct service connection. The examiner concluded that the Veteran's enlarged prostrate was not related to service. His rationale is that no records state that he was diagnosed with the condition while in Vietnam. He further indicated that there is no evidence to support the contention that Agent Orange can cause this condition. (Disability Benefits Questionnaire (DBQ) December 2015). The VA opinion is inadequate. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). First, the fact that the Veteran was not diagnosed with the condition in-service is not dispositive. The examiner must also take into account all lay statements and other evidence of record, such as the fact that the Veteran indicated that he had been seen for several years for his condition, as well as any in-service symptoms the Veteran may have complained about. See Nieves-Rodriguez v. Peake 22 Vet. App. 295 (2008). Secondly, the examiner concluded that there is, "[n]o evidence to support that Agent Orange can cause this condition..." The reviewer should provide a more complete rational and discuss any relevant medical literature regarding the possibility of a relationship between BPH and herbicide (or Agent Orange) exposure. See Jones v. Shinseki, 23 Vet. App. 382 (2010). ED With respect to erectile dysfunction, the examiner states, "[t]here is no evidence to support th[at] Agent Orange can cause this condition." (C&P Examination, December 2015). However, the examiner has not opined as to whether or not the Veteran's erectile dysfunction was aggravated by his in-service Agent Orange exposure. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, as indicated above, a more complete rationale with respect to the Veteran's exposure to herbicides should be provided. Secondly, in the remand directives, the VA examiner was asked to provide an opinion as to whether or not the Veteran's ED condition was related to his medications taken for BPH, in-service herbicide exposure or some other condition. The examiner in his opinion only partially answered the question and provided a conclusory opinion with no explanation. For instance, the examiner stated that the Veteran had been taking BPH medication since 2009, and that his erectile dysfunction symptoms started many years prior to starting the medication Finasteride. (DBQ, December 2015). The examiner also opined, "[m]ost common causes for erectile dysfunction are related to vascular neurologic and drug induced." While the examiner, in the December 2015 addendum, further added that the "[p]atient does not have any vascular, neurologic or drug induced erectile dysfunction caused while in service," this is not specific as to the Veteran's cause of ED and requires clarification. "[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriquez v. Peake, 22 Vet. App at 301. Given the opinion does not provide enough information for the Board to make an informed decision, remand is required. Accordingly, the case is REMANDED for the following action: 1. The Veteran indicated he received medical treatment in New York in 1984. The RO should obtain and associate with the record all of the available private treatment records from 1984 to the present. The Veteran should be contacted to identify any medical providers that may have records relevant to his claim. The Veteran should be requested to authorize release of any such records. 2. All actions to obtain the requested records should be documented fully in the claims file. The Veteran should be notified if the AOJ is unable to obtain those records. 3. After 1 and 2 have been completed as to the discretion of the AOJ, provide the entire claims file (including this Remand) to the examiner who provided the December 2015 VA opinion and February 2016 addendum, and obtain from that examiner an addendum opinion. If the examiner who performed the December 2015 VA examination is not available, then any appropriate medical professional may offer the opinion. Regardless of who offers the opinion, if the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. With regard to BPH: (a) An addendum opinion is required as to whether it is as least as likely as not (a probability of 50 percent or greater) that any current BPH had its onset during service or was otherwise causally or etiologically related to service, to include presumed exposure to herbicide agents (Agent Orange) during service. The examiner should specifically address from the December 2015 VA examination that "there is no evidence to support that agent orange can cause this condition (BPH)." The examiner must provide support for this medical statement. In rendering this opinion, the examiner is asked to: (1) consider and address the Veteran's contentions (his lay statements) regarding herbicide etiology, and the examiner must be aware that service connection for disabilities other than those specifically listed in 38 C.F.R. § 3.309(e) may be established if all the evidence, including the medical evidence, establishes that the current disability is at least as likely as not related to herbicide exposure. In other words, service connection on a direct basis is not precluded because the claimed disability has not been definitively associated with herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). (2) The examiner must explain the reasons behind any opinions expressed and conclusions reached, to include a discussion, which provides appropriate citations, to any relevant medical literature regarding the possibility of a relationship between BPH and Agent Orange. With regard to ED: (a) An addendum opinion is required as to whether it is as least as likely as not (a probability of 50 percent or greater) that any current ED had its onset during service or was otherwise causally or etiologically related to service, to include presumed exposure to herbicide agents (Agent Orange) during service. The examiner should specifically address from the February 2016 VA examination that "there is no evidence to support that agent orange can cause this condition (ED)." The examiner must provide support for this medical statement. The examiner should specifically address that the "[m]ost common causes for erectile dysfunction are related to vascular neurologic and drug induced," and explain if the Veteran's ED is caused by such. The examiner must provide support for this medical statement. The examiner should specifically address and explain if the Veteran's medication for BPH is causing or aggravating his ED. In rendering this opinion, the examiner is further asked to: (1) consider and address the Veteran's contentions (lay statement) regarding herbicide etiology, and the examiner must be aware that service connection for disabilities other than those specifically listed in 38 C.F.R. § 3.309(e) may be established if all the evidence, including the medical evidence, establishes that the current disability is at least as likely as not related to in-service herbicide exposure. In other words, service connection on a direct basis is not precluded simply because the claimed disability has not been definitively associated with herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). (2) The examiner must explain the reasons behind any opinions expressed and conclusions reached, to include a discussion, which provides appropriate citations, to any relevant medical literature regarding the possibility of a relationship between ED and Agent Orange. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. The AMC should review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Then, readjudicate the claims on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the case to the Board, if otherwise in order. The appellant 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. §§ 5109B, 7112 (West 2012). _________________________________________________ YVETTE R.WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).