Citation Nr: 21069236 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-23 097 DATE: November 17, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for squamous cell carcinoma of the right nasal frenulum is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for a back condition resulting from VA treatment is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Navy during the Vietnam Era and Peacetime, from June 1974 to June 1977, and in the United States Air Force during the Gulf War Era, from February 2004 to January 2005 and September 2007 to November 2007. The Veteran served in Kuwait and Iraq, and was awarded the Iraq Campaign Medal among other honors and awards. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. When these matters came before the Board previously in December 2018, they were remanded for additional development. The additional development has been conducted and the matters return to the Board for further appellate review. Following the Board's prior remand, a July 2020 Rating Decision granted the Veteran's claim for a total disability rating based upon individual unemployability (TDIU) effective September 20, 2010. This represents a full grant of the benefit sought and, as such, the issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). While further delay is regrettable, for the reasons set forth below, the Board finds there has not been substantial compliance with the prior remand directives such that remand is again required for the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). REASONS FOR REMAND Entitlement to service connection for prostate cancer is remanded. The Veteran contends his diagnosed prostate cancer is due to in-service "toxic exposure associated with Burn Pits" and/or depleted uranium. As noted above, the Veteran served in Kuwait and Iraq at the Balad AFB. The Board's December 2018 remand determined the December 2009 VA examination report is inadequate for adjudication purposes. Consequently, the Board directed the Veteran be afforded another VA examination, which was conducted in September 2019. According to the VA examiner, it is less likely as not that the Veteran's prostate cancer was incurred in or caused by burn pits during service. By way of rationale, the VA examiner references two studies by The Institute of Medicine (IOM) regarding the health effects of serving in the Gulf War and the long-term health consequences of exposure to burn pits in Iraq and Afghanistan. Specifically, the VA examiner quotes that, "'there is insufficient/inadequate evidence to determine whether an association exists between deployment to the Gulf War and any form of cancer.'" Further, the examiner quotes that the "'committee was unable to determine whether any increased risks of ... prostate cancer were associated with combustion products ... to include the claimed in-service exposure to depleted uranium and/or ... toxins emanating from burn pits he was exposed to in Iraq.'" The VA examiner concludes that, "to date, no evidence of an increased risk for prostate cancer has been established." However, according to the VA examiner, the IOM "acknowledged the potential health risks of burn pit toxins" and that, "[b]ecause of the carcinogenic nature of many of the chemicals potentially associated with burn pit emissions, it is prudent to continue investigations." For the following reasons, the Board finds the VA examination report is inadequate for adjudication purposes and, consequently, there has not been substantial compliance with the prior remand directives. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. 268. First, the VA examiner bases the negative nexus opinion almost exclusively upon two inconclusive studies by the IOM. Specifically, the examiner quotes two inconclusive sentences from the IOM reports regarding in-service exposure to environmental hazards and cancer. A bare conclusion, even one reached by a healthcare professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 18, 22 (2007). Additionally, the VA examiner's opinion is conclusory as it is devoid of any reasoned medical analysis in relation to the pertinent evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As a result, the Board is unable to conclude that the VA examiner applied valid medical analysis to the significant facts of this particular case. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). An independent medical opinion was submitted on behalf of the Veteran by a registered nurse, Ms. A.C., in July 2021. According to Ms. A.C., "it is [her] professional opinion that [the Veteran's] in-service toxic exposures at least as likely as not caused his prostate cancer." She states that, "medical literature identifies numerous toxins in which the [V]eteran was exposed in service as carcinogenic (e.g., dioxin, Trichloroethane (TCE), Trichloropropane (TCP), acetaldehyde, acrolein)." Ms. A.C. discusses studies by the International Agency for Research on Cancer (IARC) showing "an increased risk of prostate cancer from arsenic exposure." Moreover, she references other potential risks factors, noting a lack of evidence of chemical exposure before or after the Veteran's military service at Balad AFB, as well as his age of 54 when diagnosed with prostate cancer versus the "average age" of 66. Further, Ms. A.C. bases her opinion on the Veteran's race and lack of genetic predisposition or family history, as well as smoking status. In sum, she ultimately concludes that, "[g]iven the [V]eteran's lack of significant risk factors for prostate cancer, one cannot exclude [the Veteran's] in-service toxic exposures exposure [sic] as a significant contributing factor in his prostate cancer." The Board finds the independent medical opinion inadequate for adjudication purposes. Specifically, while the opinion cites numerous scientific studies and articles regarding a potential etiological relationship between cancer and exposure to various toxins, the opinion lacks clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Stefl, 21 Vet. App. at 124. For example, use of language such as "higher risks," "twice as likely," "studies that have shown a link," and "one cannot exclude" falls short of clear conclusions. Ms. A.C.'s opinion is not supported by a sufficiently clear and well-reasoned medical rationale consistent with the verifiable facts regarding the nature of the Veteran's service. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned. See Nieves-Rodriguez, 22 Vet. App. at 304. Based upon the foregoing, the Board finds remand is required to afford the Veteran another VA examination and procure a medical nexus opinion adequate for adjudication purposes. Entitlement to service connection for squamous cell carcinoma of the right nasal frenulum is remanded. The Veteran contends his diagnosed squamous cell carcinoma of the right nasal frenulum (claimed as nasal cancer) is due to in-service "toxic exposure associated with Burn Pits" and/or depleted uranium while stationed at Balad AFB. As noted above, the Veteran's exposure to environmental hazards in the Gulf War has been conceded. The Board's December 2018 remand determined the Veteran should be afforded a VA examination to assess the likely etiology of his squamous cell carcinoma, which was conducted in-person in September 2019. As set forth below, the Board finds the VA examination report inadequate for purposes of determining service connection and, consequently, there has not been substantial compliance with the prior remand directives. See Barr, 21 Vet. App. 303 (2007); Stegall, 11 Vet. App. at 271. The VA examiner bases the negative nexus opinion almost exclusively upon the two inconclusive studies by the IOM. Specifically, the VA examiner quotes that, "'there is insufficient/inadequate evidence to determine whether an association exists between deployment to the Gulf War and skin conditions' to include the claimed squamous cell carcinoma of the skin" and that, "there is insufficient/inadequate evidence to determine whether an association exists between deployment to the Gulf War and any form of cancer." Indeed, the VA examiner's opinion is conclusory as it is devoid of any reasoned medical analysis in relation to the pertinent evidence of record. See Nieves-Rodriguez, 22 Vet. App. 295. Instead, the VA examiner merely quotes two inconclusive sentences from the IOM reports regarding in-service exposure to environmental hazards and cancer. A bare conclusion, even one reached by a healthcare professional, is not probative without a factual predicate in the record. See Miller, 11 Vet. App. at 22. As a result, the Board is unable to conclude that the VA examiner applied valid medical analysis to the significant facts of this particular case. See Stefl, 21 Vet. App. at 124. An independent medical opinion was submitted on behalf of the Veteran by a registered nurse, Ms. A.C., in July 2021. According to Ms. A.C., the Veteran's "in-service toxic exposures at least as likely as not caused his nasal cancer." By way of rationale, she states that, "[p]rimary malignant tumors of the nasal cavity are extremely rare" and that, "[m]ost individuals are diagnosed with nasal cancer in the sixth decade of life or later," whereas the Veteran was diagnosed "in 2009 in his early to mid-50s." Ms. A.C. reported the Veteran "was exposed to numerous toxins that are known to cause nasal cancer." The Board assigns no probative weight to the independent medical opinion authored by Ms. A.C. Specifically, her opinion focuses on an etiological relationship between exposure to environmental hazards and "nasal cancer." However, the Veteran's actual diagnosis is squamous cell carcinoma of the skin at the right nasal frenulum, which was completely excised by shave biopsy. As such, the independent medical opinion appears to be based upon an incorrect factual premise, specifically, that the Veteran's cancer was of the nasal cavity. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding a medical opinion based upon an incorrect factual premise is not probative). Based upon the foregoing, the Board finds remand is required to afford the Veteran another VA examination and procure a medical nexus opinion adequate for adjudication purposes. Entitlement to compensation under 38 U.S.C. § 1151 for a back condition resulting from VA treatment is remanded. The Veteran filed a claim for compensation for his lower back condition under 38 U.S.C. § 1151 in July 2010. Specifically, the Veteran contends that, while hospitalized at the VA medical center (VAMC) in Portland in February 2010, he contracted a staph infection ultimately resulting in a T12 costotransversectomy with T11-12 vertebrectomy and placement of hardware in September 2010. In March 2018, the Veteran's attorney states that, "[t]he medical evidence established that as a result of surgery for his prostate cancer, the [V]eteran incurred secondary disabilities of osteomyelitis and spine disability." In February 2010, the Veteran underwent a prostatectomy at the VAMC due to prostate cancer. In March 2010, VA treatment notes indicate the Veteran had a urinary tract infection (UTI) a couple of weeks prior and, also in March 2010, he experienced a syncopal episode and fell in the shower. In April 2010, the Veteran was diagnosed with another UTI and a foley catheter was again placed due to nocturia and dysuria. In May 2010, VA treatment notes report a thoracic spine fracture and suspected "osteomyelitis or septic emboli given blood cultures [positive] for staph." Moreover, the VA physician reports the source of the staph bacteria is unclear and "likely insitu osteomyelitis due to hematogenous spread at time of his prostatectomy." The Veteran ultimately underwent a T12 costotransversectomy with T11-12 vertebrectomy and placement of hardware in September 2010, including a revision procedure the next day. According to the surgical report, the Veteran "underwent posterior fusion and costotransversectomy for a severe kyphotic deformity which he developed secondary to an osteomyelitis infection." A VA treatment note dated January 2011 reports the Veteran as status post "prostate surgery for cancer with complications resulting in osteomyelitis and spinal surgery." VA treatment notes dated October 2012 report the Veteran has "a history of chronic low back pain status post prostatectomy and osteomyelitis after MRSA infection in 2010 with compression fracture and fusion surgery T11-12 with hardware." The Board's December 2018 remand determined the VA examination dated January 2013 (report submitted February 2013) is inadequate for adjudication purposes. Consequently, the Board directed the Veteran be afforded another VA examination, which was conducted in September 2019 (report submitted October 2019). As discussed below, the Board finds the VA examination report inadequate for purposes of determining entitlement to compensation under 38 U.S.C. § 1151 and, as a result, there has not been substantial compliance with the prior remand directives. See Barr, 21 Vet. App. 303; Stegall, 11 Vet. App. at 271. First, according to the VA examiner, it is less likely as not that the Veteran's staph infection resulted from the February 2010 prostatectomy performed at the VAMC. By way of rationale, the examiner reports that, "[t]he medical evidence does not identify or support a diagnosis of staph infection due to prostatectomy procedure performed February 2010." However, it is well-settled that the absence of contemporaneous records, alone, is an insufficient rationale for a negative medical nexus opinion. Next, the VA examiner reported that urine cultures conducted postoperatively revealed staphylococcus aureus, "which is also the most common organism for osteomyelitis." Based upon the VA examiner's statement, the Veteran's postoperative staph infection may be etiologically associated with the subsequently diagnosed osteomyelitis which, based upon the VA treatment records, is implicated in the Veteran's compression fracture and fusion surgery T11-12 with hardware. As such, the VA examiner's rationale appears internally inconsistent. Finally, the VA examination report is devoid of reference, much less discussion, of the aforementioned VA treatment records suggesting an etiological relationship between the Veteran's prostatectomy and subsequently diagnosed staph infection and osteomyelitis resulting in spine surgery. Based upon the foregoing, the Board finds remand is required to afford the Veteran another VA examination and procure a medical nexus opinion adequate for adjudication purposes. Accordingly, this matter is REMANDED for the following action: 1. Obtain a medical opinion from a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's prostate cancer and squamous cell carcinoma of the right nasal frenulum, to include as due to conceded exposure to environmental hazards in the Southwest Asia theater of military operations and, particularly, Balad AFB. **If the examiner determines an additional examination is indicated, such examination must be scheduled. If the Veteran is examined, the examiner must obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as in-service events, observable symptomology, and functional limitations. All pertinent symptomology and manifestations must be elicited and reported in detail. Based upon a review of all pertinent evidence in the Veteran's claims file including medical treatment and prior examination records, lay statements, and the examination results (if conducted), the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's prostate cancer manifested during active military service or within one year of discharge, or is due to, related to, or otherwise etiologically associated with an in-service injury, event, or illness including, but not limited to, conceded exposure to environmental hazards emanating from burn pits. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's squamous cell carcinoma of the right nasal frenulum manifested during active military service or within one year of discharge, or is due to, related to, or otherwise etiologically associated with an in-service injury, event, or illness including, but not limited to, conceded exposure to environmental hazards emanating from burn pits. In offering the above opinions, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical evidence of record including, but not limited to: (a.) the scientific and medical studies referenced in the July 2021 independent medical opinion including, but not limited to, International Agency Research on Cancer (IARC) Monographs, Arsenic, Metals, Fibres, and Dusts, Volume 100 (2012), National Toxicology Program, Reports on Carcinogens: Arsenic and Inorganic Arsenic Compounds, 14th edition, and National Cancer Institute, Formaldehyde (2019); and (b.) the IOM studies entitled Gulf War and Health: Volume 10: Update of Health Effects of Serving in the Gulf War (2016) and Long-Term Health Consequences of Exposure to Burn Pits in Iraq and Afghanistan; (c.) April 2010 VA training letter regarding environmental hazards in Iraq, Afghanistan, and other military installations; and (d.) December 2006 Department of the Air Force memorandum regarding burn pits at Balad AFB. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and, as warranted, relevant medical literature, must be provided. 2. Obtain a medical opinion from a physician who has not previously offered an opinion in this matter and possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's thoracolumbar spine condition(s), to include as due to a staph infection and/or osteomyelitis associated with a prostatectomy performed at a VAMC in February 2010. If the examiner determines an additional examination is indicated, such examination must be scheduled. If the Veteran is examined, the examiner must obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as medical events, observable symptomology, and functional limitations. All pertinent symptomology and manifestations must be elicited and reported in detail. Based upon a review of all pertinent evidence in the Veteran's claims file including medical treatment and prior examination records, lay statements, and the examination results (if conducted), the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's thoracolumbar spine condition(s), or some portion of the condition(s), is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in providing the February 2010 surgery and/or other subsequent treatment. In providing this opinion, the examiner must consider whether VA failed to exercise the degree of care expected of a reasonable health care provider. If the examiner answers the above question in the negative, he or she must state whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's back condition(s) was an event which was not reasonably foreseeable. In providing this opinion, the examiner is advised that the event/disability need not be completely unforeseeable or unimaginable but must be one that a reasonable healthcare provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, the examiner must consider whether the risk of the Veteran's current back condition(s) was the type of risk that a reasonable healthcare provider would have disclosed in connection with the informed consent procedures. In offering the above opinion, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical treatment and examination evidence of record including, but not limited to: (a.) VA treatment records dated March and April 2010 regarding recurring UTIs, syncopal episode, and foley catheter replacement; (b.) VA treatment records dated May 2010 regarding thoracic spine fracture and suspected "osteomyelitis or septic emboli given blood cultures [positive] for staph"; (c.) VA treatment records dated September 2010 regarding thoracolumbar spine surgery "for a severe kyphotic deformity which he developed secondary to an osteomyelitis infection"; (d.) VA treatment records dated January 2011 noting the Veteran as status post "prostate surgery for cancer with complications resulting in osteomyelitis and spinal surgery"; and (e.) VA treatment notes dated October 2012 reporting "a history of chronic low back pain status post prostatectomy and osteomyelitis after MRSA infection in 2010 with compression fracture and fusion surgery T11-12 with hardware." A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record and, as warranted, relevant medical literature, must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.