Citation Nr: 1805869 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 11-21 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an enlarged prostate, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had active military service from May 1958 to May 1960 and from October 1961 to June 1982. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By way of lengthy procedural history, in a June 2013 decision, the Board denied the Veteran's claims for service connection for hypertension, and a lung disability including as due to asbestos exposure. At that time, the Board remanded the Veteran's claims for service connection for back, eye, and prostate disabilities to the Agency of Original Jurisdiction (AOJ) for further development. The Veteran appealed the Board's June 2013 decision that denied service connection for hypertension and lung disabilities to the United States Court of Appeals for Veteran's Claims (Court). In a December 2013 decision, the Board denied service connection for a back disability. At that time, the Board remanded the Veteran's claims for service connection for a bilateral eye disability and an enlarged prostate to the AOJ for further development. In an August 2014 Order, the Court granted a July 2014 Joint Motion for Remand (JMR), vacated the Board's June 2013 decision as to the claims for service connection for hypertension and lung disabilities, and remanded the claims to the Board for action consistent with the JMR. In a January 2015 decision, the Board denied service connection for a bilateral eye disability and enlarged prostate, and remanded the Veteran's claims for service connection for hypertension and lung disabilities to the AOJ for additional development. The Veteran appealed the Board's January 2015 decision that denied service connection for a prostate disorder to the Court. In a January 2016 Order, the Court granted a January 2016 Joint Motion for Partial Remand (JMR), that vacated the Board's January 2015 decision as to the claim for service connection for an enlarged prostate including as due to herbicide exposure. The JMR noted that the appellant declined to pursue his claim for service connection for a bilateral eye disability. Additionally, the JMR noted that his claims for service connection for hypertension and lung disabilities were not before the Court as they were remanded by the Board in January 2015. In a January 2016 decision, the Board denied the Veteran's claims for service connection for hypertension and a lung disability. In March 2016, the Board remanded the Veteran's claim for service connection for a prostate disorder to the AOJ for further development. In May 2017, the Board requested a medical opinion, pursuant to 38 U.S.C. § 7109 (2012) and 38 C.F.R. § 20.901 (2017). A Veterans Health Administration (VHA) medical opinion was rendered July 2017. See 7/7/17 Correspondence. In August 2017, the appellant was given an opportunity to present additional argument. See 8/7/17 Correspondence. His representative submitted additional argument in November 2017. See 1/18/18 VA 646 Statement of Accredited in Appealed Case. Additionally, in March 2016, the Board noted that, in a December 2015 statement, the Veteran's representative raised the issue of entitlement to service connection for allergic rhinitis. The Veteran's representative essentially argued that the issue of lung disability should be broadened to include allergic rhinitis. The Board stated that the claim for lung disability was not general enough to include allergic rhinitis. As this issue was not adjudicated by the AOJ, the Board did not have jurisdiction over it, and it was referred to the AOJ for appropriate action. However, the Veteran and his representative are advised that the December 2015 statement does not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.160(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In November 2017, the Veteran's representative requested that the Board remand the Veteran's case for two reasons. First, the representative argues that there may be outstanding service treatment records relevant to the Veteran's claim. The representative points to the July 2017 VHA examiner's report noting that, in April 1976 while on active duty, the Veteran was referred for a urology consultation at which time it was recommended that he undergo an intravenous pyelogram (IVP) and a cystoscopy. See e.g., 11/15/73 STR-Medical, page 41. The Veteran's service treatment records are silent as to these procedures being completed and, if so, the findings. The representative maintains that cystoscopies and intravenous pyelograms can be used to diagnose an enlarged prostate and cites medical literature to support this argument. See Mayo Clinic, Test and Procedures: Cystoscopy, https://www.mayoclinic.org/tests-procedures/cystoscopy/basics/why-its-done/prc-20013535?p=1 4/4 (last visited Nov. 8, 2017); Mayo Clinic, Test and Procedures: Intravenous pyelogram, https://www.mayoclinic.org/tests-procedures/intravenous-pyelogram/basics/why-itsdone/prc-20018949?p=1 (last visited Nov. 8, 2017). The Board agrees that further effort should be made to obtain any outstanding service treatment records relevant to the Veteran's claim. Second, the Veteran's representative argues that a new VA medical opinion is needed as to whether the Veteran's prostate condition was caused by his exposure to toxic metals while working as a mechanic while on active duty for nineteen years. The representative notes that there is scientific evidence to support a possible relationship between the Veteran's prostate condition and exposure to toxic metals. He provided copies of relevant medical literature with his statement. Notably, according to the United States Centers for Disease Control (CDC), auto mechanics are at risk for higher than average levels of exposure to cadmium. See CDC, Cadmium Toxicity Who Is as Risk of Cadmium Exposure?, https://www.atsdr.cdc.gov/csem/csem.asp?csem=6&po=8 (last visited Nov. 8, 2017) (attached). A scientific study found that "results suggest that the accumulation of toxic metals in prostate tissue has a significant positive correlation with the pathogenesis of BPH." Chiraya Pandya et al., Association of Cadmium and Lead with Antioxidant Status and Incidence of Benign Prostatic Hyperplasia in Patients of Western India, 152 (3) Biological Trace Element Research 316 (June 2013) (attached). Further, another study found toxic metal exposure is associated with BPH. See L. Fritschi et al., Occupational risk factors for prostate cancer and benign prostatic hyperplasia: a case-control study in Western Australia, 64 Occup. Environ. Med. 60-65 (2007) (sampling mechanics among other professionals). The Veteran's representative maintains that the Veteran has a current prostate diagnosis, he was a mechanic while in active service, evidence shows mechanics are exposed to toxic metals, and probative scientific research links toxic metal exposure to prostate conditions. Thus, a new medical opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board agrees and finds that an additional VA medical opinion is needed as to the etiology of the Veteran's prostate disorder. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all service treatment records of cystoscopy and intravenous pyelogram studies associated with the Veteran's April 1976 urological evaluation at Ft. Leonard Wood, Missouri, during active service. Efforts to obtain the records must continue until they are received, unless it is reasonably certain that records of such testing do not exist, or that further efforts to obtain such records would be futile. If unavailable, document such in the claims file. 2. After completing the development requested above, refer the Veteran's file with a copy of this REMAND to a VA physician (preferably a urologist) for an opinion (an opinion prepared in consultation with a physician is not acceptable) regarding the etiology of the Veteran's prostate disorder. (If the physician-examiner determines that a clinical examination is required, one must be provided.) The examiner should review the Veteran's electronic records and address the following. a. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a prostate disorder (identified at any time since 2009) was caused or aggravated by a disease or injury in military service, including the Veteran's exposure to toxic metals while working as a mechanic on active duty for nineteen years. b. A comprehensive rationale is to be provided for all opinions rendered. The examiner is particularly requested to address the Veteran's argument that auto mechanics are at risk for higher than average levels of exposure to cadmium and the medical literature provided by his representative in November 2017 and noted above. c. The absence of evidence of treatment for prostate symptoms in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. d. 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 or if the inability is due to the limits of the examiner's knowledge or of medical knowledge in general. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. e. If the claim remains denied, issue a supplemental statement of the case. Then return the appeal to the Board, if otherwise in order. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ Paul Sorisio 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).