Citation Nr: 1808241 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-15 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for post-operative residuals of prostate cancer. 2. Entitlement to service connection for a urinary disorder, other than post-operative residuals of prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In June 2014, the Veteran presented sworn testimony at a hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of that hearing is of record. The Veteran was offered the opportunity to present testimony before another VLJ; however he declined a second hearing. See October 2017 Hearing Options Response Form. This matter was remanded in June 2015 and January 2017 for further development. The Board notes that the current appeal was originally certified as a claim for service connection for residuals of prostate cancer. However, as will be discussed below, the record is highly suggestive that beyond his post-operative residuals of prostate cancer, the Veteran also suffers from a separate urinary disorder. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) and Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). In light of the record, the Board has expanded the appeal to include an additional issue of entitlement to service connection for a urinary disorder, other than post-operative residuals of prostate cancer. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). This addition is reflected on the title page of the decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Outstanding Treatment Medical Records In June 2015, in light of the Veteran's testimony, the Board directed the RO to request and obtain outstanding treatment medical records from Andrew's Air Force Base. Review of the claims file is negative for indication that these records were obtained or even requested by the RO. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers on a claimant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Additionally, in May 2017, the Veteran requested that treatment medical records from "Mike O'Callaghan Federal Hospital," located on the Nellis Air Force Base, be obtained. See VA 21-4142 Authorization for Release of Information. In June 2017, the RO was informed that an initial attempt to obtain these records was denied as the O'Callaghan facility was federal and not private. See Medical Records Request Rejection Notice. The claims file is silent as to any additional actions taken by the RO to obtain these records. 38 C.F.R. § 3.159(c)(2). In light of the aforementioned, a remand is required. Inadequate VA Examination Of record are August 2012, October 2015, and May 2017 opinions from a single VA examiner addressing the nature and etiology of the Veteran's claimed prostate/urinary disabilities. As discussed in the Board's previous remands, the August 2012 and October 2015 opinions were inadequate. A new opinion was requested. Specifically, the Board requested clarification as to whether the Veteran has or had a benign hypertrophic prostate (BHP) condition during the pendency of the appeal. The Board also requested clarification as to whether this BHP and the Veteran's noted prostate and bladder neck incision surgery were related to his in-service enlarged prostate. In response, the examiner clarified that during the appeal period the Veteran had not experienced a BHP. The examiner essentially explained that as the Veteran was status-post prostatectomy he was without a prostate, and therefore medically incapable of experiencing a BHP during the appeal. The examiner then noted the following: "transurethral resection of the prostate and bladder neck incision are accepted methods in the treatment of obstructive prostatic hyperplasia [OPH], which is a benign hypertrophic condition reducing the outflow from the bladder neck and is as [sic] at least as likely as not...related to vet's enlarged prostate." The Board finds the examiner's opinion inadequate. Here, the examiner's positive opinion is essentially predicated on the Veteran's enlarged bladder resulting in OPH and in turn requiring surgical resection/incision. However, clinical records establish that the Veteran's 2010 prostatectomy predated his March 2012 transurethral incision of the bladder neck. See Mike O'Callaghan Military Medical Center Records. Importantly, as indicated by the examiner, BPH is medically impossible after a prostatectomy. Therefore, per the examiner's reasoning, it would have been medically impossible for the Veteran to have experienced OPH at the time of his 2012 transurethral incision. Thus, the examiner's rationale connecting OPH to the Veteran's in-service enlarged prostate is currently insufficient to support service connection. The contradictory findings of the examiner are also insufficient to deny service connection, as critical questions remain unresolved. In brief, the examination and clinical records are highly suggestive that beyond the Veteran's residuals of prostate cancer he has suffered from an on-going urinary condition which has possibly been present in and since service. See Mike O'Callaghan Military USAF Medical Center Records and 2012-2017 VA Examination Opinions. In addition, these records are suggestive that symptomatology previously characterized as residuals of the Veteran's prostate cancer, namely urinary incontinence and retention, are also associated with a separate urinary condition. See March 2012 Mike O'Callaghan Military USAF Medical Center Records. In light of the aforementioned inadequacies and repeat attempts by the 2012-2017 examiner, the Board finds that a new VA examination and opinion from a separate examiner is required. See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, the examination must be an adequate one.) Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA and private treatment medical records. 2. Make all necessary attempts to obtain all records of the Veteran's post-service treatment as a retiree at the following military facilities: a. Malcolm Grow USAF Medical Center at Andrews Air Force Base, Maryland; dating back to December 1989. Note, on Board hearing the Veteran reported seeking treatment in the early 1990s. b. Mike O'Callaghan Military USAF Medical Center at Nellis Air Force Base, Las Vegas, Nevada, from approximately September 2012-Present. The Board is particularly interested in all treatment records prepared by Dr. C. A. and Dr. D. C. See June 2017 VA Form 21-4142a. i. Please note that these are NOT records of treatment while the Veteran was on active duty. Appropriate protocols should be followed for obtaining records of post-service treatment from the applicable records repository pertaining to records of post-service treatment of retirees. c. All efforts to obtain these records must be documented in the claims file. If these records cannot be obtained, the Veteran must be notified of this fact and provided an opportunity to submit all treatment records in his possession. 3. After the all available treatment records have been associated with the claims file, the AOJ should schedule the Veteran for an examination with a qualified medical professional, preferably by physician other than the 2012-2017 VA examiner, to obtain a medical opinion on the nature and etiology of the Veteran's post-surgical residuals of prostate cancer/urinary condition. The examiner must review the claims file (to include this remand). After reviewing the relevant evidence and conducting all indicated diagnostic tests, the examiner must opine: a. Identify any prostate/urinary disorders, to include residuals of prostate cancer and benign hypertrophic prostate conditions (e.g., obstructive prostatic hyperplasia), experienced by the Veteran since August 2009. b. For each disorder identified, is it at least as likely as not (50 percent or greater probability) the Veteran's prostate/urinary disorder had its onset during or was causally related to his service, to include his May 1987 noted enlarged prostate? c. In addressing the above questions, the examiner should: i. Discuss lay statements by the Veteran reporting symptomatology in and since service. See Board Hearing Testimony. ii. Discuss examination and clinical records which are suggestive that beyond the Veteran's residuals of prostate cancer he has suffered from an on-going urinary condition which has possibly been present in and since service. See Mike O'Callaghan Military USAF Medical Center Records and 2012-2017 VA Examination Opinions. If possible, please indicate what condition caused the Veteran's urinary incontinence and bladder neck contracture requiring transurethral incision in March 2012? See Mike O'Callaghan Military USAF Medical Center. The significance of symptoms previously characterized as residuals of the Veteran's prostate cancer; namely urinary incontinence and retention, being also associated with separate urinary conditions such as the medical condition treated by transurethral incision in March 2012 should be discussed. See Mike O'Callaghan Military USAF Medical Center Records and 2012-2017 VA Examination Opinions. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Upon completion of the VA examination, the AOJ should review the examiner's report to ensure substantial compliance with the Board's directives and take any necessary corrective actions. 5. Upon completion of the above actions, readjudicate the claims. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Thereafter, these issues should be returned to the Board for further appellate review, if 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 (2002). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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) (2017).