Citation Nr: 21067946 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 14-07 829 DATE: November 8, 2021 ORDER Entitlement to service connection for radiation proctitis (formerly claimed under 38 U.S.C. § 1151) is granted. Entitlement to service connection for radiation cystitis with hematuria (formerly claimed under 38 U.S.C. § 1151) is granted. Entitlement to service connection for a bladder neck contracture necessitating deep lateral transurethral incisions of bladder neck contracture (TUIBNC), Foley catheter placement, and "removal of bladder chips," (formerly claimed under 38 U.S.C. § 1151) is granted. REMANDED Entitlement to an evaluation in excess of 60 percent for service-connected residuals of prostate cancer, status post radical prostatectomy, is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran's radiation proctitis was caused by a service-connected disability. 2. The most probative evidence reflects that the Veteran's radiation cystitis with hematuria was caused by a service-connected disability. 3. The most probative evidence reflects that the Veteran's bladder neck contracture necessitating deep lateral TUIBNC, Foley catheter placement, and "removal of bladder chips," was caused by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for radiation proctitis are met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. § 3.310. 2. The criteria to establish service connection for radiation cystitis with hematuria are met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. § 3.310. 3. The criteria to establish service connection for a bladder neck contracture necessitating deep lateral TUIBNC, Foley catheter placement, and "removal of bladder chips," are met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1969 to January 1971, to include service in the Republic of Vietnam. He also has prior inactive service of an unspecified nature. These matters come before the Board of Veterans' Appeals (the Board) on appeal from multiple rating decisions from the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. In December 2017, the Veteran presented testimony in support of his appeal at a Board hearing conducted by the undersigned Veterans Law Judge via videoconferencing equipment. A transcript of the December 2017 hearing is associated with the file. In November 2018, April 2020, and March 2021, the Board, among other actions, remanded the issues on appeal for further evidentiary and procedural development. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate reconsideration. Clarification of issues on appeal The record reflects that prostate cancer was initially diagnosed in April 2008, and the Veteran filed a claim to establish service connection for this disease in June 2008. In an August 2008 rating decision, the AOJ established service connection for prostate cancer, effective from June 18, 2008. The Veteran underwent radical prostatectomy surgery in August 2008, and his post-surgical treatment regimen included VA-contracted radiation treatments at Radiation Oncology, LLC. and South Carolina Oncology Associates in coordination with Palmetto Richland Cancer Center from January 2010 to March 2010. In March 2011, the Veteran asserted that these VA-contracted radiation treatments had resulted in additional disabilities, and he wished to file a claim for VA compensation for such under the provisions of 38 U.S.C. § 1151. Since this filing, the Veteran's claim and resulting appeal was developed and adjudicated under this theory of entitlement; however, as will be explained below, recent evidence raises the theory of secondary service connection regarding each of the Veteran's claimed disabilities resulting from his VA-contracted prostate cancer treatments. In view of the above circumstances, the Veteran's initial claim has been expanded from a claim under 38 U.S.C. § 1151 to include this theory of entitlement and bifurcated to reflect each of the separate "additional disabilities" shown by the record. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). As the Board's disposition in these matters is fully favored to the Veteran, he is not prejudiced by the Board's actions. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 1. Entitlement to service connection for radiation proctitis, to include as secondary to service-connected prostate cancer (formerly claimed under 38 U.S.C. § 1151) 2. Entitlement to service connection for radiation cystitis with hematuria, to include as secondary to service-connected prostate cancer (formerly claimed under 38 U.S.C. § 1151) 3. Entitlement to service connection for a bladder neck contracture necessitating deep lateral TUIBNC, Foley catheter placement, and "removal of bladder chips," to include as secondary to service-connected prostate cancer (formerly claimed under 38 U.S.C. § 1151) Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Analysis As analysis of these issues entails application of identical laws to congruent facts, the Board will address them together in the interest of economy. As outlined in the Introduction, service connection for prostate cancer has been established since June 2008, and the Veteran contends that his VA-contracted radiation treatments for this service-connected disability caused additional disabilities for which he should receive VA compensation. In developing the Veteran's claim and resulting appeal during the 10-year pendency of the case, VA has obtained medical evidence that the VA-contracted radiation treatments resulted in diagnoses of radiation proctitis, radiation cystitis with hematuria, and a bladder neck contracture necessitating deep lateral TUIBNC, Foley catheter placement, and "removal of bladder chips." As such, elements (1) and (2) to establish secondary service connection are amply demonstrated regarding all three issues. As previously noted, the Veteran initially sought VA compensation for these disabilities under the provisions of 38 U.S.C. § 1151, which includes consideration of whether the VA-contracted treatment included negligence which caused the additional disabilities or whether such were unforeseeable consequences of the treatment. The Board's three prior remands were focused on obtaining adequate medical opinions addressing negligence, causation, and foreseeability, as per the provisions of 38 U.S.C. § 1151; however, these prior efforts were frustrated by the AOJ's inability to obtain signed informed consent forms from the VA-contracted facility that completed the Veteran's radiation treatments from January 2010 to March 2010. Notwithstanding the deficiencies noted above, the VA-contracted physician who attempted to provide the requested opinions addressing the criteria of 38 U.S.C. § 1151 in June 2021 made statements which support awards of service connection for these additional disabilities under the theory of secondary service connection. Specifically, the physician opined in June 2021 that the Veteran's radiation proctitis, radiation cystitis with hematuria, and a bladder neck contracture, while commonplace in cases involving radical prostatectomy and subsequent radiation treatments, are at least as likely as not caused by his service-connected prostate cancer. The opinion was reiterated by the physician an August 2021 addendum, who added that the evidence of record supports the conclusion that each of these additional disabilities were caused by treatments that the Veteran received for his service-connected prostate cancer. The Board finds that the physician's June 2021 and August 2021 opinions regarding causation of the Veteran's disabilities via secondary service connection to be highly probative, as each were rendered after a review of the record and cite specific evidence within the Veteran's VA file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Bloom v. West, 12 Vet. App. 185, 187 (1999). There is no medical evidence to the contrary regarding the etiology of these disabilities. In view of above, the Board concludes that the most probative evidence reflects that the Veteran's radiation proctitis, radiation cystitis with hematuria, and a bladder neck contracture were caused by his service-connected prostate cancer, and thus, service connection for these disabilities is warranted. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 60 percent for service-connected residuals of prostate cancer, status post radical prostatectomy, is remanded. In the March 2021 remand, the Board noted the intertwined nature of the Veteran's appealed issues seeking (1) an increased evaluation for his service-connected prostate cancer residuals and (2) compensation for additional prostate cancer residuals under the provisions of 38 U.S.C. § 1151. As detailed above, the latter issue has been resolved in a manner which is fully favorable to the Veteran; however, this further complicates the former issue, as it now involves determining the appropriate rating for each of the Veteran's four separate service-connected prostate cancer residuals with consideration of which of the Veteran's multiple genitourinary symptoms are attributable to which distinct disability and/or whether any of the disabilities are manifested by overlapping symptoms. The complex medical matters outlined above were contemplated by the Board in the March 2021 remand, which is why the Board directed the AOJ to obtain medical advisory opinions from a physician specializing in Urology, as per 38 U.S.C. § 5109 (a) and 38 C.F.R. § 3.328. The AOJ initially complied with the Board's March 2021 remand directives, as medical opinions from a urologist were requested in May 2021 through Veterans Evaluation Services (VES) a private contractor from which VA solicits medical opinions under certain circumstances. Unfortunately, VES's response to the AOJ's May 2021 request reflects "that our (VES's) contract with VA does not require a specialist to provide this opinion," and thus, the June 2021 opinions and August 2021 addendum were provided by an internist. The Board acknowledges the efforts of the physician who provided the June 2021 opinions and August 2021 addendum, as adequate medical opinions were provided which led to favorable resolution of three of the Veteran's appealed issues; however, regarding the remaining matter to be decided by the Board and the AOJ (i.e. determining which of the Veteran's genitourinary symptoms are attributable, partly or wholly, to each of his service-connected four separate service-connected prostate cancer residuals with consideration of whether any symptoms and/or disabilities overlap), the physician stated in June 2021 that such could not be addressed without resort to mere speculation, as the limits of current medical knowledge had been exhausted. Certainly, the Board and the AOJ appreciated the complexity of the medical matters involved in determining the appropriate ratings for each of the Veteran's four service-connected prostate cancer residuals when advisory opinions were requested from a specific specialist in March 2021 and May 2021, respectively. Unfortunately, VES's unilateral decision to not engage the requested specialist on these matters has resulted in the Board's inability to readjudicate the Veteran's appealed issue. In view of above, another remand is necessary. The Board wishes to underline the importance of having a urologist examine the Veteran and provide the requested opinions, as outlined below, as implementation of the Board's allowances and resolution of the issue subject to this remand are both reliant on the adequacy of this examination and the examiner's medical opinions. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. The AOJ must request that the Veteran identify and complete releases for all private treatment records associated with the disabilities addressed within this remand. For each release that the Veteran completes and submits, the AOJ must make two attempts to obtain the identified records and notify the Veteran if any such records cannot be acquired. The Veteran is encouraged to cooperate with the AOJ's efforts to obtain these records by completing and submitting the appropriate VA Forms in a timely manner. He is encouraged to seek assistance from his accredited representative in this endeavor, if necessary *The Board is particularly interested in any and all records from Radiation Oncology, LLC. and South Carolina Oncology Associates in coordination with Palmetto Richland Cancer Center between January 2010 and March 2010. *The AOJ must contact Radiation Oncology, LLC. and South Carolina Oncology Associates in coordination with Palmetto Richland Cancer Center via the U. S. mail system at the address provided in June 2020 by Palmetto Health Richland. This request must note that the Veteran receives continuing care for his genitourinary symptoms associate with prostate cancer for which he received treatment at that facility in 2010. *The AOJ must seek these records until they are obtained or a negative response is provided by the private provider. In the event that these records are found to be unavailable for review, the AOJ must document this in the Veteran's file with a formal finding of unavailability that explains whether such records never existed or did exist, but could not be obtained. 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination conducted by a VA urologist to determine the frequency, severity, and duration of the symptoms attributable to the Veteran's service-connected prostate cancer residuals. The Veteran's complete VA file must be made available to, and reviewed by, the VA examiner prior to completing the VA examination. Any testing deemed necessary to address the questions posed below must be completed. After completion of the above, the VA examiner is asked to address the following: The examiner must describe the frequency, severity, and duration of the manifestations of each of the Veteran's service-connected residuals of prostate cancer. *In addressing the above, the VA examiner is on notice that service connection has been established for (1) radiation proctitis, (2) radiation cystitis with hematuria, and (3) a bladder neck contracture necessitating deep lateral TUIBNC, Foley catheter placement, and "removal of bladder chips" For each of these disabilities, the examiner must utilize the DBQs pertaining to voiding dysfunction, urinary frequency, obstructive voiding, and urinary tract infections, whichever is predominant for each disability. *The examiner is asked to provide statements which attempt to differentiate which genitourinary symptoms are attributable to which service-connected residual disability of prostate cancer (enumerated above). If such differentiation is not possible, this must be clearly stated. If the examiner cannot provide any opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the additional evidence added to the record. If any benefit remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, provided with the applicable opportunity to respond, and the matter should then be returned to the Board for further appellate review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.