Citation Nr: 21002096 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-08 097 DATE: January 12, 2021 REMANDED Entitlement to service connection for a prostate disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1983 to July 2003. The Veteran testified at a hearing in June 2017 before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This matter was previously before the Board in November 2017, and May 2020, at which time they were remanded for further evidentiary development. This matter has returned to the Board for further appellate review. Entitlement to service connection for a prostate disorder is remanded. The Veteran contends that his constant urinary issues in-service are related to his current prostate disorder. See February 2020 Correspondence. The Board finds there has not been substantial compliance with its May 2020 and November 2017 remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2020 the Board found the August 2010 and December 2019 VA examinations inadequate as the examiners only identified two records in the Veteran’s service treatment records that contained urinary complaints, where as there are several other instances of relevant symptomatology noted in the Veteran’s STRs. The May 2020 remand directives instructed the RO to obtain a new VA opinion which addressed all of the in-service notations of relevant symptomatology. The Board further found the December 2019 VA examination inadequate as it failed to discuss the August 1999 patient report in which the Veteran reported several urinary complaints, as originally directed by the November 2017 Board remand directives. Pursuant to the Board’s May 2020 remand, a VA Disability Benefits Questionnaire (DBQ) was completed. The examiner was asked to provide an opinion as to whether the in-service symptoms are related to the post-service diagnosis. The examiner opined the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner’s rationale notes the Veteran was treated on many occasions for urethritis (STI) during service. The examiner further noted STR are silent for BPH and that BPH was diagnosed in 2008, 5 years after active duty and he underwent surgical treatment for it at VA in September 15, 2008. The examiner further noted in regard to the in service August 1999 patient report, that the International Prostate Symptom Score (IPSS) worksheet is not a reliable diagnostic tool for lower urinary tract symptoms (LUTS) suggestive of benin prostatic hyperplasia (BPH) but serves as a quantitative measure of LUTS after the diagnosis is established. The examiner further stated that review of STR after 1999 through 2003 is silent for prostate symptoms. The examiner stated that the rectal exam and urinalysis in the 2003 retirement examination was normal. The Board finds this examination inadequate as it again failed to specifically address the in-service complaints and diagnoses, including nongonococcal urethritis and any association with sexually transmitted diseases (STDs) as requested by the Board’s May 2020 remand. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, a new VA opinion is needed which addresses all of the relevant in-service notations and which provides an opinion as to whether the in-service symptomatology is related to the post-service diagnoses. Finally, the Board has taken into consideration the representative’s concerns regarding the competence of the VA Nurse Practitioner who provided the opinion for the Veteran’s prostate disorder claim. In the November 2020 Appellate Brief, the representative challenged the competence of the VA Nurse Practitioner. The representative requested that VA provide the curriculum vitae and other information regarding the qualifications of the examiner that demonstrates that she was competent to provide an opinion on the specific issue of service connection for the Veteran’s claimed prostate disorder and associated urinary symptoms. Since the examiner’s competency has been challenged, a remand is necessary to obtain information regarding the examiner’s qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner’s competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner’s qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). Upon remand, the AOJ should provide the Veteran information regarding the September 2020 VA examiner’s medical qualifications. The matters are REMANDED for the following action: 1. Provide the Veteran information regarding the qualifications of the September 2020 VA examiner. This may include a curriculum vitae and other information regarding the qualifications of the examiner. Copies of the information provided to the Veteran should be included in the claims file. 2. Obtain an addendum VA opinion from an appropriate medical professional regarding the nature and etiology of the Veteran’s claimed prostate disorder and any associated urinary symptoms. The entire claims file should be reviewed by the clinician. The need for an in-person examination is left to the discretion of the clinician. The clinician is asked to determine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that any current prostate disorder, or other genito-urinary system disorder (e.g. bladder outlet obstruction) is related to service, specifically to include these notations in the STRs: 1. March 1984: slight burning upon urination for two weeks, green discharge; 2. May 1988: burning during urination for three days, diagnosis of nongonococcal urethritis; 3. November 1989: penile discharge, diagnosis of UTI and nongonococcal urethritis; 4. December 1991: burning upon urination for two to three days; 5. August 1992: dysuria for four to five days; 6. April 1996: tingling in the urethra; 7. May 1997: diagnosis of nongonococcal urethritis; 8. May 1999: elective circumcision; 9. August 1999: frequency of urination, yellowish penile discharge for one week; 10. August 1999: patient report reflecting incomplete emptying, frequency, and intermittency once each, and nocturia twice; 11. December 1999: penile discharge for ten days, diagnosis of urethritis; and 12. March 2003: normal separation examination and report of medical history denying frequent or painful urination. (b.) The clinician should provide a complete rationale for any opinions provided. The clinician is specifically asked to address the in-service complaints and diagnoses, including nongonococcal urethritis and any association with STDs and the current diagnoses. The clinician should provide an opinion as to whether the inservice symptoms are related to the post-service diagnoses that is supported by a discussion of the Veteran’s relevant medical history and accepted medical knowledge. It is anticipated that the opinion would include a discussion of the Veteran’s in-service complaints and findings and why they are, or are not considered to be a cause of current disability, or etiologically related to a current disability (including any prostate disorder or other genito-urinary system disorder; e.g. bladder outlet obstruction). 2. Readjudicate the issue on appeal. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.