Citation Nr: 21063868 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 13-33 596 DATE: October 18, 2021 REMANDED Entitlement to a separate compensable rating for service-connected diabetic nephropathy is remanded. Entitlement to service connection for benign prostatic hypertrophy (BPH) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1967 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in March 2018, August 2019, and August 2020. In August 2020, the Board denied the claim for a separate compensable rating for service-connected diabetic nephropathy. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In May 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's August 2020 decision, and remanded for further proceedings. 1. Entitlement to a separate compensable rating for nephropathy is remanded. In the May 2021 Order, the Court found that the Board failed in its duty to assist in obtaining VA treatment records. An April 2020 VA medical record noted that the Veteran had an appointment with Dr. S. in six months and that labs, including a urinalysis, were being ordered prior to the appointment; however, VA medical records dated from April 2020 forward were not associated with the Veteran's claims file. The Court found that on remand, "the Board must ensure that the [Veteran's] VA medical records are complete in order to comply with the duty to assist." The Court also found that the Board failed to comply with Bryant v. Shinseki, 23 Vet. App. 488 (2010), during the January 2018 Board hearing. During the hearing, the Veteran's testimony concerning whether his nephropathy is associated with his enlarged prostate suggested that the Veteran had sought treatment from a medical provider on the specific issue of whether his nephropathy or incontinence was related to his enlarged prostate. However, the hearing officer failed to suggest that the Veteran submit medical evidence related to this issue, to include a medical opinion linking urinary frequency to nephropathy. As it was determined that the Board failed to comply with Bryant, the Court found that remand is warranted for appropriate notice and correction of this error. Pursuant to the Court's Order, the Board will remand to obtain the Veteran's VA treatment records from April 2020 forward, and to request that the Veteran submit any medical evidence he has concerning whether his nephropathy or incontinence is related to his enlarged prostate, including any medical opinion(s) linking his urinary frequency to his nephropathy. 2. Entitlement to service connection for BPH is remanded. Additionally, the Court found that the Board had provided inadequate reasons or bases as to whether there is a reasonably raised issue of benign prostatic hypertrophy (BPH), secondary to the diabetic nephropathy claim on appeal. The Court stated that in the April 2020 Board decision, the Board noted that the Veteran believed that his urinary symptoms were caused by his service-connected nephropathy. The Court noted that the Board also indicated that VA examiners opined that his symptoms of urinary incontinence or frequency were related to his nonservice-connected BPH, not his service-connected nephropathy, and the Veteran sought a separate compensable rating for nephropathy because of the frequency with which he must urinate. Moreover, the Court found that in a September 2013 supplemental claim, the Veteran asserted that he had BPH. On remand, the Court determined that the Board must address whether there were reasonably raised claims for BPH secondary to the Veteran's service-connected diabetic nephropathy and if there was a reasonably raised claim for incontinence due to BPH. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Pursuant to Morgan v. Wilkie, 31 Vet. App. 162, the Board finds that it is essential to rate, on a schedular basis, all the manifestations of the Veteran's service-connected diabetic nephropathy, to include any urinary incontinence or urinary frequency manifestations of the Veteran's service-connected diabetic nephropathy. As such, on remand, a medical opinion should be obtained to determine any urinary incontinence or urinary frequency symptoms the Veteran has that are related to his BPH, and if so, whether his BPH is related to diabetic nephropathy. Morgan v. Wilkie, 31 Vet. App. 162 (2019) (explaining that VA's duty to maximize benefits may require it to consider secondary The matters are REMANDED for the following action: 1. Obtaining all outstanding VA treatment records from April 2020 forward and associate with the claims file. 2. Contact the Veteran to request that he submit any medical evidence he has, regarding the issue of whether his nephropathy or incontinence are related to his enlarged prostate, specifically to include any medical opinion(s) linking his urinary frequency to his service-connected nephropathy. 3. Forward the claims file to a qualified medical professional to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's benign prostatic hypertrophy (BPH). If the examiner determines that another physical examination is necessary, such an examination should be scheduled. Following a review of the claims file, the examiner should provide the following opinions: (a.) Is it at least as likely as ot (50 percent or greater probability) that urinary incontinence or urinary frequency symptoms the Veteran has are related to his BPH, and if so, (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's BPH is proximately due to diabetic nephropathy? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's BPH has been aggravated (i.e., worsened beyond its natural progression) by diabetic nephropathy? A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence if any would allow for a more definitive opinion. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.