Citation Nr: 21069928 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 13-31 604 DATE: November 22, 2021 REMANDED Entitlement to service connection for benign prostatic hypertrophy (BPH) with polyuria, to include as secondary to diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Veteran testified during a hearing before a Decision Review Officer. A copy of the transcript has been associated with the claims file. See 10/7/2013 Hearing Testimony. The Board notes that the Veteran requested a hearing before the Board. See 11/6/2013 Form 9. VA provided a notification letter to the Veteran in February 2015 and informed him that the requested hearing was scheduled for June 2015. See 2/24/2015 BVA Letter. The February 2020 letter further notified the Veteran that upon the failure to report to the hearing, the Board will consider the hearing request withdrawn and will not grant another request for a hearing for the same appeal unless the failure to report arose under circumstances that did not allow for the submission of a timely request to reschedule the hearing. The Veteran was deemed a no-show for the Board hearing and neither the Veteran, nor his authorized attorney representative, furnished an explanation for his failure to report, nor requested that the hearing be postponed or rescheduled. As such, in November 2018, the Board found the Veteran's request for a Board hearing to be withdrawn. 38 C.F.R. § 20.704(d). This appeal has a long procedural history and has been before the Board previously. The Board remanded this claim back to the Agency of Original Jurisdiction (AOJ) in July 2015, November 2018, September 2020, and March 2021 to obtain supplemental medical opinions concerning whether the Veteran's service-connected diabetes mellitus caused or aggravated his current BPH with polyuria disability. Most recently, in June 2021, the issue on appeal was remanded because the April 2021 addendum opinion was deemed inadequate and nonprobative since the clinician applied the incorrect legal standard. After a September 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. The appeal for service connection for an acquired psychiatric disorder was not part of the perfected issue on appeal included in the November 2013 Form 9. Subsequently, the issue of service connection for an acquired psychiatric disorder was perfected in a separate March 2014 Form 9. The issue was certified to the Board in May 2015. As the appeal for an acquired psychiatric disorder has been perfected, it has been merged with the appeal for service connection for BPH with polyuria. An October 2017 rating decision granted the claim for service connection for an acquired psychiatric disorder. As such, this matter is no longer on appeal due to the full grant of the benefit sought and it will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Additionally, the September 2018 rating decision granted a total disability based on individual unemployability (TDIU) benefits, effective June 22, 2017. Further, in November 2018 the Board granted an earlier effective date for TDIU and the March 2019 rating decision implemented the grant for an earlier effective date of December 28, 2013. As such, this matter is no longer on appeal due to the full grant of the benefit sought and it will not be discussed. Id. Moreover, in July 2015 the Board denied the claims for service connection for bilateral upper and lower extremity neuropathy. In addition, in November 2018 the Board denied the claim for service connection for hypertension. Service connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for BPH with polyuria, to include as secondary to diabetes mellitus. The Veteran seeks service connection for BPH with polyuria. Specifically, the Veteran contends that his disability is due to his service-connected diabetes mellitus. See 9/28/2012 VA 21-526; see also 10/7/2013 Hearing Testimony, at page 15. As stated above, this issue has been remanded several times in the past. In light of this, the Board regrets the additional delay, but finds another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, the Board finds a remand is necessary to comply with the June 2021 remand directives, to obtain an opinion regarding whether the current BPH with polyuria disability was caused or aggravated by the Veteran's service-connected diabetes mellitus. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Substantial, not strict, compliance is needed. During a September 2021 VA addendum opinion, the reviewing clinician reported that he was unable to determine a baseline level of severity of the Veteran's BPH with polyuria. As rationale, the reviewing clinician opined that "BPH is an extremely common condition in elderly men[,] such as [the Veteran]." Additionally, he stated that the Veteran's diabetes was well-controlled with a hemoglobin A1C level below 6.9. Further, the reviewing clinician concluded that "there is more than 50 [percent] probability that his urinary [symptoms] were due to BPH and not diabetes." Moreover, the reviewing clinician opined that it was less likely than not that the Veteran's BPH with polyuria was aggravated beyond its natural progression by the service-connected diabetes mellitus. As rationale, the reviewing clinician once again stated that the Veteran's diabetes was well-controlled at least since 2012 with hemoglobin A1C levels below 6.9. See 9/23/2021 C&P Examination. However, the Board finds this opinion inadequate. The reviewing clinician stated that BPH is an extremely common condition in elderly men, such as the Veteran; however, the clinician did not explain its importance. Additionally, the clinician stated that "there is more than 50 [percent] probability that his urinary [symptoms] were due to BPH and not diabetes;" however, he did not discuss whether the Veteran's BPH was due to diabetes, as per the June 2021 Board remand directive. Further, the clinician did not show adequate consideration of all relevant evidence and relied on inaccurate facts, namely, that the Veteran's diabetes mellitus was well-controlled with hemoglobin A1C levels below 6.9. However, the record showed that on June 26, 2018 and January 8, 2019 the Veteran's A1C level was 7.8. Additionally, on January 17, 2019 the A1C level was 10.2, on March 18, 2019 the A1C level was 7.9, and on April 19, 2019, the A1C level was 7.4. Further, on October 23, 2019, the A1C level was 7.5, on December 3, 2019, the A1C level was 7.4, and on July 24, 2020, the A1C level was 8.2. See 1/22/2021 CAPRI, at pages 45, 68, 88, 92, 98, and 102; see also 7/26/2021 CAPRI, at page 7. As such, the Board finds that an addendum opinion that considers the entire record and addresses if the Veteran's BPH with polyuria was caused or aggravated by his service-connected diabetes mellitus is warranted. This matter is REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding VA records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. Return the claims file to the examiner who authored the September 2021 VA addendum opinion. A copy of this remand request should also be provided. After review of the claims file, the examiner is to specifically address: (a.) Whether it is at least as likely as not (probability of approximately 50 percent or more) that the Veteran's current BPH with polyuria is related to an in-service injury, event, or disease, to include as due to the service-connected diabetes mellitus. (b.) Whether it is at least as likely as not (probability of approximately 50 percent or more) that the current BPH with polyuria has been aggravated (i.e., worsened beyond the normal progression of that disease) by the service-connected diabetes mellitus. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. **In doing so, the examiner must provide specific evidence of record to support his conclusions, such as references from this Veteran's relevant medical history and/or medical literature. Additionally, the examiner must address the Veteran's records that showed that on June 26, 2018 and January 8, 2019 the Veteran's A1C level was 7.8. Additionally, on January 17, 2019 the A1C level was 10.2, on March 18, 2019 the A1C level was 7.9, and on April 19, 2019, the A1C level was 7.4. Further, on October 23, 2019, the A1C level was 7.5, on December 3, 2019, the A1C level was 7.4, and on July 24, 2020, the A1C level was 8.2. See 1/22/2021 CAPRI, at pages 45, 68, 88, 92, 98, and 102; see also 7/26/2021 CAPRI, at page 7.** If the September 2021 reviewing clinician is no longer available, then the claims file and the September 2021 opinion should be forwarded to another examiner of at least equal qualifications, preferably a urologist, to obtain the requested opinion. A new physical examination is not required unless deemed necessary by the clinician. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.