Citation Nr: 21068761 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 19-14 762 DATE: November 12, 2021 REMANDED Entitlement to service connection for bone cancer of the 9th rib and L3 vertebra, to include as secondary to service-connected degenerative disc disease of the lumbar spine, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. Entitlement to service connection for urethral mass, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to January 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA), Veterans Benefit Administration (VBA), Regional Office (RO). The Veteran was afforded a hearing with the undersigned Veterans Law Judge in December 2020. A transcript of the hearing has been associated with the Veteran's file. 1. Entitlement to service connection for bone cancer of the 9th rib and L3 vertebra, to include as secondary to service-connected degenerative disc disease of the lumbar spine, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. 2. Entitlement to service connection for urethral mass, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. To promote efficiency, the issues of entitlement to service connection and compensation under 38 U.S.C. § 1151 for bone cancer of the 9th rib and L3 vertebra and for urethral mass will be addressed together. For the reasons expressed below, the Board concludes a remand is necessary in order to provide the Veteran with VA examinations, etiological opinions, and to obtain a medical opinion addressing medical matters under 38 U.S.C. § 1151. First, at the Veteran's Board hearing, it was contended that VA had not adequately considered the relationship between the Veteran's service-connected back condition and the Veteran's bone cancer. More specifically, it is asserted that the Veteran's back condition was worse because of inadequate treatment during service, and his resulting disability made the Veteran more susceptible to the subsequent metastasis of his prostate cancer to his 9th rib and L3 vertebra. As no opinion in this regard is of record, remand is necessary for such an opinion. Second, the Veteran asserted that both of his claimed conditions resulted from VA's failure to properly monitor the Veteran prostate cancer and the residuals thereof, which subsequently led to the metastasis of the Veteran's prostate cancer to his 9th rib and L3 vertebra. Consequently, since this theory was not previously asserted by the Veteran, remand is additionally warranted for the development and adjudication of this additionally raised theory. The matters are REMANDED for the following action: 1. The AOJ should send the Veteran and his attorney a notice letter that includes an explanation of the elements necessary to substantiate claims asserted under the provisions of 38 U.S.C. § 1151 and the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's decision in Allen v. Brown, 8 Vet. App. 374 (1995). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his bone cancer of the 9th rib and L3 vertebra and urethral mass. The examiner must review pertinent documents in the clams file in conjunction with the examination to include previous VA examinations. This must be noted in the examination report. All tests and studies deemed necessary by the examiner should be performed. The examiner is asked to provide an opinion regarding his bone cancer: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bone cancer of the 9th rib and L3 vertebra had its onset in service or is otherwise etiologically related to his active-duty service; and/or, (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bone cancer of the 9th rib and L3 vertebra was caused or aggravated by the severity of the Veteran's service-connected lumbar spine disability. Specifically, whether the metastasis of the Veteran's prostate cancer to the bone progressed beyond its natural progression by his service-connected degenerative disc disease of the lumbar spine to include in-service back injury. The examiner ia asked to provide an opinion regarding his urethral mass: Whether it is at least as likely as not (50 percent probability or greater) that his urethral mass had its onset in service or is otherwise etiologically related to active-duty service. Given the additional theory of entitlement to compensation under 38 U.S.C. § 1151, the examiner is additionally asked to provide an opinion as to the following: (a). Is it at least as likely as not that the Veteran's bone cancer of the 9th rib and L3 vertebra and/or urethral mass is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in failing to properly monitor the Veteran's prostate cancer and the residuals thereof? (b). If the Veteran incurred these disabilities as a result of VA medical care, but such disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the additional disability to be an ordinary risk of the VA treatment received by the Veteran. (c.) If the examiner cannot provide the requested 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. 3. Thereafter, the AOJ must readjudicate the issues on appeal. If the benefit is not granted to the fullest extent, the Veteran and his attorney must be furnished with a Supplemental Statement of the Case (SSOC) and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.