Citation Nr: 21000167 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 19-25 666 DATE: January 4, 2021 REMANDED Entitlement to a disability rating in excess of 60 percent for prostate cancer, status post prostatectomy is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case in October 2019 and April 2020 for further development. Entitlement to a disability rating in excess of 60 percent for prostate cancer, status post prostatectomy is remanded 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. As noted above, the Board remanded the Veteran’s claim in October 2019 and April 2020 for additional development. Unfortunately, that development was not satisfactorily completed and further development is required. In the October 2019 remand, the Board determined that remand was necessary to afford the Veteran a VA examination that addressed the residuals of his prostate cancer, as well as the Veteran’s assertions of poor overall health and well-being, to include lethargy, fatigue, and weight loss. An assessment of the Veteran’s renal function, including BUN and creatinine levels were requested. The Veteran was afforded a January 2020 VA examination which failed to address the Veteran’s renal function, overall health, and reports of lethargy, fatigue, and weight loss. Due to these deficiencies, the Veteran’s claim was again remanded in April 2020 for a VA addendum opinion. The AOJ was also directed to obtain additional treatment records with the Veteran’s assistance, as it was evident there were outstanding pertinent private treatment records related to the Veteran’s prostate cancer. An addendum opinion was issued in June 2020. The VA examiner indicated that the Veteran’s most recent examination listed BUN normal at 19 and creatinine at 1.48, with a note that normal was 1.3. The examiner explained that these levels were so close to normal that they would not produce any symptoms and would not be the cause of lethargy, fatigue, or weight loss. The examiner opined that the Veteran’s lethargy, fatigue, and weight loss would be more likely related to post-irradiation and prostate surgery residuals. He added that urinary incontinence and usage of absorbent underwear would also be a residual of irradiation and prostate surgery. Subsequent to the addendum, the AOJ sought clarification of the opinions expressed and an addendum to the June 2020 opinion was issued in August 2020. The examiner noted that the Veteran’s BUN and creatinine levels were normal and therefore, there would be no symptoms at all and would not cause fatigue or lethargy. The examiner noted he had reviewed August 2018 and January 2020 VA examinations of record and both examinations were silent for any complaints of lethargy or fatigue. The Veteran had undergone a prostatectomy and irradiation therapy in 2016 and while the Veteran’s remarks of urinary leakage and frequency could be tiresome at times, it was less likely it would cause symptomatic fatigue and lethargy now, four year later. Finally, the examiner indicated there were no findings of debilitating residuals or reduction in daily activity due to fatigue or lethargy. The Board finds the June 2020 and August 2020 medical opinions inadequate, and as such, remand for an addendum opinion is warranted. A Board remand confers upon an appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Further, when VA provides a claimant an examination or obtains a medical opinion, VA must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In the June 2020 opinion, the examiner stated that lethargy, fatigue, and weight loss would be more likely related to post-irradiation and prostate surgery residuals. After clarification was sought, the examiner remarked that while the Veteran indicated urinary leakage and frequency could be tiresome, it was less likely to cause systematic lethargy and fatigue four years later. This additional explanation is not adequate, as it remains unclear whether the Veteran’s complaints of lethargy, fatigue, and weight loss are related to post-irradiation and prostate surgery residuals. The Board also notes that while the examiner noted 2018 and 2020 VA examinations were silent for complaints of lethargy and fatigue, he failed to consider a July 2017 VA examination in which the Veteran reported a reduced level of energy, and a February 2018 private treatment record noting a gradual increase in fatigue over the last few years and sleep disturbances due to nocturia four times a night. As such, remand for an addendum opinion is needed to address the aforementioned deficiencies. While on remand, the Veteran should be given another opportunity to identify or submit private treatment records related to his prostate cancer and residuals. The Board notes that the Veteran last submitted private treatment records related to his prostate cancer in 2016. During the January 2020 VA examination, the Veteran presented lab results from Sound Medical from January 2019, indicating ongoing private treatment. Additionally, a February 2018 private treatment record reflected a diagnosis of sleep disorder insomnia with a note that the Veteran was being referred for a sleep study and to a pulmonologist. Treatment records related to these referrals have not been associated with the electronic claims file. Both Board remands in October 2019 and April 2020 directed the AOJ, with the Veteran’s assistance, to obtain outstanding VA and private treatment records. The Veteran failed to provide VA with copies of private treatment records or with his authorization allowing VA to obtain treatment records from private providers. The Board notes that the duty to assist is not a one-way street; the veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As these private treatment records are pertinent to the Veteran’s claim, VA should attempt once again to obtain these records. The matter is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers, specifically treatment records from Sound Medical and treatment records related to the Veteran’s sleep study and referral to a pulmonologist. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s prostate cancer, status post prostatectomy and residuals. The claims file and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a)Fully describe residuals of the Veteran’s prostate cancer, status post prostatectomy, to include, but not limited to, any associated kidney dysfunction, voiding dysfunction, and/or prostate condition. b) Specifically address the Veteran’s reports of a decline in overall health and well-being, to include increased lethargy and fatigue, and weight loss, and determine if they are residuals of the Veteran’s prostate cancer, prostate cancer surgery, and/or irradiation. In forming the requested opinions, the examiner should address previous VA examinations of record, the Veteran’s statements, and treatment records noting reports of increased fatigue, lethargy, and sleep disturbances. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested 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). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, 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.