Citation Nr: 21004068 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-12 355 DATE: January 25, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability claimed as a result of VA treatment for prostate cancer is remanded. REASONS FOR REMAND This matter was previously before the Board of Veterans’ Appeals (Board) in May 2019, when it was remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain an opinion addressing the following questions: • Is it at least as likely as not that VA medical providers failed to timely diagnose and/or treat the Veteran’s prostate and/or lung cancer? • Is it at least as likely as not that the Veteran has additional disability, to include, but not limited to, the claimed partial loss of the left lung, that would have been avoided if the proper diagnosis and treatment for prostate and/or lung cancer had been rendered earlier? • Is it at least likely as not the claimed additional disability of continuous catheterization five to seven times per day is proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA providers who treated the Veteran’s prostate cancer; or an event not reasonably foreseeable prior to the provision of such treatment? In January 2020, a VA examiner provided an opinion using a direct service connection disability benefits questionnaire in which he indicated “the claimed condition was less likely than not (less than 50 percent probability)incurred in or caused by the claimed in-service injury, event, or illness” but then attempted to address the proper standard under 38 U.S.C. § 1151; however, the January 2020 VA examiner did not address the specific question posed in the Board’s May 2019 remand directives rather focusing solely on standardized 1151 questions included in the AOJ’s examination scheduling request. As a result, the Board finds there has not been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the AOJ’s inability to obtain the requested opinion through its traditional process highlights the medical complexity of the Veteran’s claim. The Board notes the Veteran’s contentions on appeal go beyond the assertion that there was a delay in the diagnosis and treatment of his prostate cancer and also encompasses his continued catheterization following his prostate cancer diagnosis, a matter which was not addressed by the January 2020 VA examiner, even though specifically requested by the Board in its May 2019 remand directives. As such, the Board finds the nature of the issue under consideration poses a medical problem of such complexity that an advisory opinion from an independent medical expert is required; therefore, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The matters are REMANDED for the following action: Obtain an expert opinion from a urologist, oncologist or other qualified physician pursuant to 38 U.S.C. § 5109 that addresses the following questions: • Is it at least as likely as not (50 percent probability or greater) that VA medical providers failed to timely diagnose and/or treat the Veteran’s prostate and/or lung cancer? • Is it at least as likely as not (50 percent probability or greater) that the Veteran has additional disability, to include, but not limited to, the claimed partial loss of the left lung, that would have been avoided if the proper diagnosis and treatment for prostate and/or lung cancer had been rendered earlier? If so, please identify the additional disability. Please note that this question is based on the Veteran’s contention that a negligent delay in treating his prostate cancer properly is what caused it to metastasize to his lung and led to his partial loss of left lung. • Is it at least likely as not (50 percent probability or greater) the claimed additional disability of continuous catheterization five to seven times per day is proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA providers who treated the Veteran’s prostate cancer; or an event not reasonably foreseeable prior to the provision of such treatment? In the context of this question, an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA must address whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. The expert’s report must include complete rationale for the answers provided. If the expert fails to address any aspect of the specific questions noted above, the report should be returned to the expert for an addendum. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.