Citation Nr: 21069943 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-15 746 DATE: November 22, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer treatment is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from June 1958 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issue on appeal was last before the Board in August 2021 when it was remanded for additional evidentiary development. The Veteran contends that the radiation treatment he received for his prostate cancer was excessive based on his age and the amount of cancer present and essentially constitutes malpractice. As a result of this treatment, the Veteran alleges that his service-connected gastric syndrome has been aggravated and he now suffers from urgency, dysuria, inability to empty his bladder and difficulty starting urination, which requires forceful attempts which causes simultaneous defecation. The Board notes that this matter was remanded in August 2021 for additional development. Specifically, this matter was remanded to request and associate with the claims file medical treatment records and any signed informed consent form(s) for the Veteran's private radiation treatment. A review of the record reveals that while private medical treatment records have been associated with the claims file, there are no signed consent for such treatment in the claims file. Records received in response to the Board remand indicate that the Veteran was informed of the treatment and alternatives and that he agreed to do so and was going to sign the treatment consent. It appears that such a document was created or going to be created. Attempts to obtain any informed consent documents related to the Veteran's radiation treatment must be made to the extent possible. In addition, the Board requested an addendum VA opinion once the above-requested documents were obtained and associated with the claims file. Specially, it directed the examiner to address August 2012 treatment notes from Dr. H. indicating the concerns of the Veteran and his spouse are legitimate regarding the claim. A VA opinion was obtained in September 2021. The examiner gave a negative opinion that the Veteran's residual symptoms were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of faulty on the part of the VA referred private medical care providing treatment consisting of 45 treatments of radiation (alleged to be excessive) for the prostate cancer. The examiner noted that Veteran was initially diagnosed with prostate cancer following Identification of Gleason 3+3adenocarcinoma on a TURP pathology report from June 2011. He also noted that the Veteran was subsequently treated with 45 treatments of radiation which represents one of the standard of care treatments for prostate cancer. Additionally, the examiner noted that 45 treatments of radiation is the recommended standard of care for total number of treatments. Furthermore, the examiner noted that the reported residual symptoms including bowel urgency, dysuria, urinary urgency, difficulty starting urination and inability to empty his bladder fall within the projected and established side effects of radiation therapy for prostate cancer. This rationale was repeated in the report where the examiner was to discuss the necessity for external beam radiation, any alternative treatments available to the Veteran, and the Veteran's various contentions. No other opinions or rationale were provided. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion is inadequate for adjudicative purposes. The examiner failed to address the August 2012 treatment notes from Dr. H. indicating the concerns of the Veteran and his spouse are legitimate regarding the claim. As such, the Board finds that there has not been substantial compliance with its remand directives. Therefore, this matter must be remanded to obtain a VA opinion that addresses all contentions that have been raised on appeal. The matter is REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. After obtaining any necessary authorization from the Veteran, contact Katin Radiation Therapy and request any documentation of Veteran's informed consent concerning external beam radiation. The record indicates that Katin Radiation Therapy saw the Veteran beginning on August 1, 2011 and that such a document was going to be signed by the Veteran. 3. Return the file to the examiner who prepared the September 2021 medical opinion and request that they prepare an addendum to the report which addressed the question or questions presented below. If the September 2021 physician is not available, the opinions should be provided by an appropriate examiner based on a review of the claims file. The opinion should answer the following questions: (a.) The examiner must address and reconcile to the extent possible the August 2012 treatment notes from Dr. H. indicating that the concerns of the Veteran and his spouse are legitimate. Does this evidence change the outcome of the opinion? Please also indicate why it does or does not change the outcome of the etiology opinion. The examiner is advised that the Veteran and his spouse are competent to report his symptoms and history. Such reports must be considered and addressed within the opinion. The opinion and rationale must go beyond a generalized statement that a review of medical literature, to include Up-To-Date, does not support the Veteran's claim. The rationale should reflect the specific facts and medical principles specific to the Veteran's claim. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.