Citation Nr: 1805399 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 12-28 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a prostate condition, to include benign prostatic hypertrophy (BPH), to include as a result of herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been prepared and associated with the claims file. In December 2015, the Board remanded the issues of entitlement to service connection for a prostate condition and entitlement to service connection for a pulmonary disorder for further development. Thereafter, in an August 2017 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for chronic obstructive pulmonary disease (COPD). Where a claim for service connection is granted during the pendency of an appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). To date, the Veteran has not filed a second NOD with regard to the rating or effective date assigned for the grant of service connection for COPD, so that issue is no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the issue on appeal. The Veteran contends that his current prostate condition started while he was in service. Specifically, the Veteran contends that he has experienced frequent urination, an enlarged prostate, and pain since 1969. See October 2015 Hearing Transcript. Additionally, the Veteran reports that he was treated for prostate symptoms in service, during leave in 1969 at a Navy base in Oklahoma, and within a year of leaving service at the Muskogee VA Medical Center (VAMC). See October 2015 Hearing Transcript; June 2011 Statement in Support of Claim. The Veteran also contends that his current prostate condition is due to herbicide exposure. A February 1968 service treatment record shows that the Veteran was diagnosed with prostatitis or possible nonspecific urethritis after complaining of urethral discharge. A March 1970 service treatment record shows that the Veteran was treated for a possible small cyst on his testicles. Available post-service treatment records show that in April 1992, the Veteran requested that his prostate be checked. He reported urinary retention and that he had been on medications. A December 1998 VA treatment record indicates that the Veteran's prostate was slightly enlarged. A December 1999 VA treatment record shows that the Veteran complained of rectal pain, decreased urination with urinary frequency, and not being able to void and empty. He reported a past history of urination two to three times per night and a history of benign prostatic hypertrophy. On examination, the Veteran had tenderness to palpation with a mildly enlarged prostate. The diagnoses were prostatitis and benign prostatic hypertrophy. During a March 2011 VA Agent Orange examination, the Veteran reported frequent urination and difficulty with urination since 1968. He also reported a history of prostatic hypertrophy since 1968. A May 2012 VA treatment record shows complaints of reduced urinary stream and a diagnosis of BPH. The Veteran was provided with a VA examination in April 2012. The Veteran reported that he was told that his prostate was enlarged in the 1960s. The examiner noted a diagnosis of BPH in 1999. The examiner opined that the Veteran's current prostate diagnosis, BPH, is less likely than not related to his diagnosis of prostatitis or possible NSU noted during military service "because the only documentation for enlarged prostate is at the Muskogee VA 12/21/1999" and because "[t]here is no record of in-service prostate enlargement which would be very unusual in such a young man." In the December 2015 remand, the Board found that the April 2012 VA examination was incomplete, thereby requiring further clarification, because the examiner provided no rationale for her opinion that the Veteran's in-service diagnosis of prostatitis has no relationship to the Veteran's post-service diagnosis of BPH and because the examiner based her negative nexus opinion exclusively on a lack of medical evidence of an enlarged prostate while in service, or for many years after service, without considering the many lay statements alleging symptoms in service and continuity since. The Board also noted that the opinion did not take into account the Veteran's in-service exposure herbicides and whether such exposure was a factor in any prostate condition that the Veteran now has. Finally, the Board noted the Veteran's contentions that the April 2012 examiner declined to perform genital and rectal examinations and that she had the Veteran sign a form indicating that he waived such physical examinations. Accordingly, the Board remanded the matter in order to provide the Veteran with another VA examination regarding the etiology of his prostate condition. The Board specifically directed the examiner to opine as to whether the Veteran's prostate condition had its onset in service or was related to any incident of service, to include herbicide exposure. The Veteran was afforded a VA prostate cancer examination in June 2017. The examiner indicated that the Veteran had never been diagnosed with prostate cancer, but had been diagnosed with prostatitis and BPH in 1999. The examiner did not perform genital and rectal examinations because such examinations were "not clinically indicated." The examiner opined that the Veteran's prostate condition was not related to service because "[n]o diagnosis of prostate cancer." In August 2017, a different VA examiner, who did not examine the Veteran, opined that the Veteran's prostatitis was not related to service because the "Veteran's claims file lacks objective medical evidence to confirm diagnosis or treatment for prostatitis during military service. There is no chronicity of care. A nexus is not established." Similarly, the examiner opined that BPH was not related to military service because the "Veteran's claims file lacks objective medical evidence to confirm diagnosis or treatment for Benign Prostatic Hyperplasia during military service." The examiner also indicated that "BPH is not typically a disease of the young man and therefore not occurred while in service." Upon review, the Board finds that the June 2017/August 2017 opinions are not fully responsive to the questions specified in the December 2015 Board remand. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). As an initial matter, neither examiner performed genital and rectal examinations as directed by the Board. Moreover, the August 2017 examiner's statements regarding the Veteran's in-service and post-service symptoms and treatment are inaccurate and reflect a less than thorough review of the evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In this regard, the examiner indicated that the Veteran was not treated for prostatitis until 1999. As noted above, the record reflects that the Veteran was treated for prostatitis in service and reported prostate symptoms as early as 1992 post-service. Moreover, the examiner based the negative opinion exclusively on a lack of medical evidence of an enlarged prostate while in service, or for many years after service, without considering the many lay statements alleging symptoms in service and continuity since. In fact, the August 2017 examiner based the negative nexus opinion on essentially the same rationale that the Board found to be incomplete in its December 2015 remand. Finally, the examiner did not discuss whether the Veteran's in-service exposure to herbicides contributed in any way to any prostate condition that the Veteran now has. Accordingly, further remand of this matter to obtain the previously requested medical opinion that complies with the Board's previous remand instructions and is based on full consideration of all evidence is needed. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision"); 38 C.F.R. § 4.2 (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Stegall v. West, 11 Vet. App. 268 (1998). Finally, because the record indicates that the Veteran has been receiving ongoing VA treatment, any updated VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify the provider(s) of any and all evaluations and/or treatment he has received for his prostate condition, to including any and all pertinent VA treatment received since March 2017, and provide authorizations for VA to obtain records of any such private treatment. The AOJ should obtain for the record complete clinical records of all pertinent evaluations and/or treatment (records of which are not already associated with the record) from the (VA and non-VA) providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. After instruction (1) has been completed, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any prostate conditions. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. Genital and rectal examinations should be performed unless the Veteran clearly declines such examinations. The VA examiner should thoroughly review the Veteran's claims file, as well as a complete copy of this Remand, in conjunction with the examination. The VA examiner should note that this action has been accomplished in the VA examination report. After reviewing the record and examining the Veteran, the examiner should provide a diagnosis for any and all current prostate conditions found. The examiner should also specifically indicate whether the Veteran currently has a diagnosis of prostatitis. Then for each diagnosed prostate condition, to include BPH, the examiner should render an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the condition had its onset during the Veteran's active military service or was caused by any incident or event that occurred during his period of service, to include, but not limited to, herbicide exposure. In rendering this opinion, the examiner should assume that the Veteran was exposed to herbicides in service. Additionally, while the examiner is free to cite to studies by the National Academy of Sciences or any other medical treatises in rendering the opinion, the examiner may not rely solely on the fact that the Veteran's prostate conditions are not on the presumptive list of diseases associated with herbicide exposure, or that the National Academy of Sciences may have determined that current studies do not support a statistical association between a given disease and Agent Orange exposure. Rather, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive, and should address whether there are other risk factors that might be the cause of the Veteran's prostate conditions or whether they manifested in an unusual manner. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, particularly the February 1968 and March 1970 service treatment records showing diagnoses of prostatitis, possible nonspecific urethritis, and a small cyst of the testicles; VA treatment records showing treatment for prostate conditions as early as 1992; and the Veteran's statements regarding onset and continuity of symptoms. The examiner is advised that the Veteran is competent to report that onset, nature, and reoccurrence of his symptomatology, and all such lay statements must be specifically considered and discussed in the examination report. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims. If benefits sought on appeal remain denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ DEBORAH W. SINGLETON 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).