Citation Nr: 21062383 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-31 970 DATE: October 7, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer is remanded. Entitlement to a rating higher than 30 percent for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1960 to July 1964. He died in October 2020. The appellant is his surviving spouse and has been properly substituted as a claimant. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part continued a 30 percent rating for bilateral hearing loss and denied entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer. In July 2019, the Veteran testified the before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. In September 2019, the Board, in pertinent part, denied entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer and remanded entitlement to an increased rating for bilateral hearing loss for additional development. In November 2020, the Board dismissed an increased rating for hearing loss without prejudice due to the Veteran's death. Since the appellant has been properly substituted in the appeal, this issue returns to the appeal. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The Veteran appealed the portion of the September 2019 Board decision denying entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the parties filed a joint motion for partial remand (JMPR). It vacated the portion of the September 2019 Board decision denying entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer and remanded the issue back to the Board for action consistent with the terms of the JMPR. The Court granted the JMPR in March 2021. In May 2021, the RO granted the appellant's request for substitution. She now takes the place of the Veteran in pursuing all pending VA compensation claims at the time of his death to completion. Id. Entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer is remanded. The March 2021 JMPR found that the Board provided inadequate reasons and bases for finding that the duty to assist was satisfied. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); 38 U.S.C. § 5103A. In December 2019 and January 2020 Motions for Reconsideration, the Veteran contended that he had increased risk for prostate cancer from his family history and race/ ethnicity and that the April 2015 VA nurse practitioner (NP) authoring the medical opinion did not consider these factors. He also asserted that the November 2011 prostate cancer screening should have been performed by a urologist and that the November 2011 VA NP incorrectly found that no further prostate cancer screening was necessary. Then, the March 2021 JMPR noted that the April 2015 VA NP's report that there was no prior prostate specific antigen (PSA) comparison for the October 2011 PSA finding was incorrect. PSA levels were reported in multiple prior VA treatment records, notably April 2000, September 2000, December 2000, July 2005, August 2005 and May 2006. The Board's decision and responses to the Veteran's Motions for Reconsideration did not directly address any of these contentions and the PSA comparison error. Given the above, a medical opinion from a urologist is needed to address the Veteran's December 2019 and January 2020 contentions as well as comply with the March 2021 JMPR and VA's duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The instructions for the medical opinion are detailed below. Entitlement to an increased rating for bilateral hearing loss, currently rated as 30 percent disabling. In September 2019, the Board remanded this claim to obtain hearing loss and speech discrimination test results referenced in May 2016 and July 2017 VA audiology clinic records and consider whether an extraschedular referral was needed. There has not been substantial compliance with these remand instructions and corrective action is needed as explained below. See id. An October 2019 agency of original jurisdiction (AOJ) report stated that there were no VA audiology clinic records from May 2016 for the Veteran, but that there were records from July 2017. Review of the VA treatment records supports the finding that May 2016 VA audiology clinic records do not exist. The AOJ then obtained a duplicative copy of the July 6, 2017 VA audiology clinic records. The duplicative copy again simply referenced an audiogram being found in the "ROES module in CPRS" and noted speech recognition scores without identifying the testing standard. Then, there is no indication, to include the December 2019 supplemental statement of the case, that the AOJ considered whether referral to the Director of Compensation for consideration of an extraschedular rating was appropriate. A remand is needed to obtain to comply with the September 2019 Board remand instructions for this claim and the duty to assist in locating VA treatment records. Id.; 38 C.F.R. § 3.159(c)(2). More search efforts are needed to obtain a complete copy of the audiogram from the July 6, 2017 VA audiology clinic visit and confirm the associated speech discrimination test standard. See id.; 38 C.F.R. § 4.85. Then, the AOJ must also consider whether referral to the Director of Compensation for consideration of an extraschedular rating is warranted. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a urologist relating to the claim for compensation under 38 U.S.C. § 1151 for prostate cancer. The urologist must conduct a complete review of the claims folder. Following a complete review of the claims folder, the urologist must opine as to the following: (a) Whether it is at least as likely as not (i.e., a 50 percent or more probability) that the Veteran's additional disability of prostate cancer was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part or VA's failure to exercise the degree of care that would be expected of a reasonable health care provider. (b) Whether it is at least as likely as not (i.e., a 50 percent or more probability) that any additional disability, to include prostate cancer and residuals, was due to an event not reasonably foreseeable. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment or lack of treatment. The urologist should clearly explain and discuss the medical evidence and the medical principles involved for any opinions expressed. The urologist must address the Veteran's family history and race/ ethnicity as prostate cancer risk factors. The urologist must consider PSA levels found in VA treatment records from April 2000, September 2000, December 2000, July 2005, August 2005, May 2006 and October 2011 as well as any other PSA test results found upon review of the record. All opinions expressed must be accompanied by a complete rationale. 2. Obtain a complete copy of the audiograms performed in connection with the July 6, 2017 VA audiology clinic consultation. The audiogram apparently can be found in "ROES module in CPRS." Also, confirm the word recognition test standard for the reported speech discrimination scores from the July 6, 2017 VA audiology clinic records. If the audiogram cannot be located or is found not to exist, obtain a response from the VA medical facility confirming that the above referenced July 2017 audiogram does not exist and prepare a memorandum to the file. If the Board is in error that the document is not currently in the electronic claims file, it apologizes for the error and requests that the agency of original jurisdiction prepare a memorandum to the file indicating the location of the document. 3. After considering whether a referral to the Director of Compensation for consideration of an extraschedular rating is warranted, readjudicate the Veteran's claim for an increased rating for bilateral hearing loss. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.