Citation Nr: 20051948 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 18-06 779 DATE: August 5, 2020 REMANDED Entitlement to service connection for prostatitis is remanded. Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for low testosterone is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from May 1987 to December 2007. 1. Entitlement to service connection for prostatitis is remanded. Remand is necessary to obtain an adequate opinion regarding the Veteran’s claim for service connection for prostatitis. A medical opinion was previously provided in September 2016, but the Board remanded the appeal in December 2018 to address statements made by the Veteran in March 2017. Subsequently, a new medical opinion was provided in August 2019. The August 2019 VA examiner provided a negative opinion and reasoned that, “There is no evidence within the medical files that the veteran had hypothyroidism, low testosterone, BPH, hypogonadism, or prostatitis during their service.” The examiner further stated that “medical records coincide with the opinion.” The examiner notated post-service records from April 2012 for Dr. M.F. The examiner also noted the post-service dates of diagnosis for prostatitis and BPH without urinary deficiency. However, this opinion is inadequate as it is improperly based solely on a lack of documented medical evidence. See Buchannan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the VA examiner’s conclusion is improperly predicated on a lack of documentation in the medical record). Additionally, the Board’s remand instructed the VA examiner to address the Veteran’s March 2017 lay assertions. In response to the Veteran’s assertions that prostatitis can exist for several years in some men before producing symptoms, the August 2019 VA examiner stated that, “The diagnosis of prostatitis would not be made until symptoms present themselves. So even though he [the Veteran] surmises his prostate make become enlarged I would not make the assertion that he has prostatitis until he began having obstructive urinary symptomatology.” However, the Board also does not find this rationale adequate to address the issue at hand. The corresponding August 2019 Reproductive System Disability Benefits Questionnaire (DBQ) states that the Veteran has had prostate enlargement with urinary symptoms for approximately 15 years beginning in 2003. The examiner did not clarify whether the symptoms were obstructive. As the August 2019 VA examiner noted obstructive urinary symptoms as indicative of prostatitis, the Veteran’s in-service symptoms are highly relevant. Thus, per the examiner’s rationale that the condition cannot be diagnosed until obstructive symptoms are present, then the condition could have been diagnosed in 2003. This possibility contradicts the negative opinion provided, specifically, the rationale that the condition was not present in service. As such, remand is necessary for an opinion to clarify this matter. See Savage v. Shinseki, 24 Vet. App. 259 (2011) (the Board may have a duty to seek clarification of unclear or insufficient medical opinions). Nor may the Board reconcile this unclear medical question. See Colvin v. Derwinski, 1 Vet. App. 191, 175 (1999) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Nor did the August 2019 VA examiner address all of the Veteran’s lay assertions in the March 2017 correspondence. In the March 2017 statement, the Veteran stated that his doctor had made the assertions that prostatitis can take several years to produce symptoms. Additionally, he also stated that his symptoms are similar to acute bacterial prostatitis, and the diagnosis of this condition can be challenging as it is often difficult to find the bacteria in the urine. It is unclear whether these assertions were also made by the Veteran’s doctor, but as the August 2019 VA examiner failed to address the assertions, whether lay or medical, the opinion provided is not adequate. Moreover, the August 2019 VA examiner’s assertion that a diagnosis of prostatitis cannot be made until obstructive urinary symptoms are present is insufficient given the assertions that this condition can be difficult to diagnose. The Veteran also stated in the March 2017 correspondence that during the last five years of service, he “was not able to go very long without having to urinate.” He stated that even with an hour and a half flight, he had to make sure he urinated before the flight. The August 2019 VA examiner did not address these assertions. Nor did the VA examiner adequately address service connection for prostatitis due to radiation. In addressing the claim for prostatitis, the Agency of Original Jurisdiction (AOJ) has determined that the Veteran was exposed to nonionizing radiation in service. See December 2017 Statement of the Case. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 21 (1997). However, as the Veteran was exposed to nonionizing radiation, those provisions relating to presumptive service connection due to ionizing radiation exposure are not applicable. See 38 U.S.C. § 1112 (c); 38 C.F.R. §§ 3.303(d), 3.309(d), 3.311. Yet, the condition must still be addressed on a direct basis. Thus, as the Veteran’s in-service exposure has been conceded, an opinion is necessary to address whether his prostatitis is due to the nonionizing radiation exposure in service on a direct basis. With regard to radiation exposure, the August 2019 VA examiner included a quote that: ‘Rate of hypothyroidism among military pilots/air crew from 2008-2017 was 9.8% (Thyroid Disorders, Active Component, U.S. Armed Forces, 2008–2017). Pilots flying for 56.6 minutes at 30,000 feet receive the same amount of UV-A [cancer-causing] effective radiation as that from a 20-minute tanning bed session,” the authors write in the paper. Most commercial aircraft fly at this altitude, where the level of UV radiation is double that found at ground level.’ I find no evidence in a literature review that would suggest the current BPH, hypogonadism, or prostatitis can be found relatable to a direct service connection. However, this rationale is not adequate as to the Veteran’s prostatitis as the article only addresses hypothyroidism, but the examiner’s conclusion also addresses prostatitis. Accordingly, remand is necessary for an addendum opinion that addresses the following: the Veteran’s lay assertions; the examiner must specifically explain whether the Veteran’s in-service urinary symptoms, to include his urinary frequency, was indicative of prostatitis or, alternatively, whether his in-service urinary symptoms are related to his current urinary symptoms associated with his prostatitis; and lastly, if service connection is not otherwise established, the examiner must address whether the condition is due to the Veteran’s in-service nonionizing radiation exposure. 2. Entitlement to service connection for hypothyroidism is remanded. Remand is necessary to obtain an adequate opinion regarding the Veteran’s claim for service connection for hypothyroidism. As noted, the August 2019 VA examiner’s rationale is based solely on a lack of documented medical evidence and is therefore inadequate. Buchannan v. Nicholson, 451 F.3d at 1331, 1337. Nor is the medical literature cited by the examiner regarding hypothyroidism a sufficient rationale regarding the Veteran’s radiation exposure. In the March 2017 correspondence, the Veteran stated that he believes the hypothyroidism is due to radiation that he was exposed to while flying the F/A-18 in service. The medical literature provided by the VA examiner does discuss radiation exposure while flying. However, the literature discussed radiation exposure among military air crew from 2008-2017. The Board notes that this Veteran was discharged from service in 2007. Thus, the literature does not appear to be applicable to this Veteran. Moreover, the examiner did not provide any discussion of the medical literature; the examiner only provided the quote. As such, remand is necessary to obtain an adequate opinion. 3. Entitlement to service connection for low testosterone is remanded. Remand is necessary to obtain an adequate opinion regarding the Veteran’s low testosterone. In addition to the opinion being improperly based on a lack of documented medical evidence, the August 2019 VA examiner did not adequately address whether the condition is due to the Veteran’s nonionizing radiation exposure. As with the rationale regarding prostatitis, the examiner improperly used the medical literature, which only addresses hypothyroidism, to reach a conclusion as to the Veteran’s low testosterone condition. Additionally, the Board finds that the issue of service connection for low testosterone may be related to the claim for service connection for prostatitis. While the Veteran has not raised this theory of entitlement, the Board finds that the theory is reasonably raised as both are conditions of the male reproductive system and asserted to be due to the same cause, radiation exposure. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence). Thus, if service connection is established for prostatitis, the examiner must also address whether the Veteran’s low testosterone is secondary to the prostatitis. With regard to aggravation, the Board notes that per a recent decision from the Court of Appeals for Veterans Claims, “any incremental increase in disability—any additional impairment of earning capacity—in non-service-connected disabilities resulting from service-connected conditions…regardless of its permanence” constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233 (2019). As such, the examiner is advised that his or her inquiry is not limited to the definition of aggravation as a permanent worsening of the condition beyond its natural progression. The matters are REMANDED for the following action: 1. Return the claims file, to include a copy of this remand, to the August 2019 VA examiner for an addendum opinion concerning the nature and etiology of the Veteran’s prostatitis, hypothyroidism and low testosterone. If the examiner is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. Any opinion provided must consider the Veteran’s and any other competent lay statements and must be accompanied by a rationale. 2. Prostatitis: The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s prostatitis was caused by or is otherwise related to his active service, to include his nonionizing radiation exposure. Importantly, the examiner must address the Veteran’s assertions that the condition can be difficult to diagnose. Additionally, the examiner must reconcile his [the examiner’s] assertions in the August 2019 opinion that “prostatitis would not be diagnosed until obstructive urinary symptoms are present” with the notation that the Veteran had “urinary symptom”s in 2003 (a time in which he was in service). 3. Hypothyroidism: The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypothyroidism was caused by or is otherwise related to his active service, to include his nonionizing radiation exposure. Importantly, as to the medical literature provided, the examiner must provide a clear rationale as to how that literature relates to the Veteran’s specific case, as opposed to only providing the quote. 4. Low Testosterone: i) The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low testosterone was caused by or is otherwise related to his active service, to include his nonionizing radiation exposure. ii) If the above opinion is negative and service connection for prostatitis is established, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s low testosterone was caused (in whole or in part) or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by his prostatitis. 5. After completing the above actions, readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.