Citation Nr: 21070711 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-24 616A DATE: November 24, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for enlarged prostate (other than prostate cancer) is reopened. REMANDED Entitlement to service connection for enlarged prostate (other than prostate cancer), to include as due to herbicide exposure, is remanded. Entitlement to service connection for heart disease, to include hypertensive heart disease or ischemic heart disease, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. In a September 2008 VA rating decision, the claim for entitlement to service connection for enlarged prostate was denied; the Veteran was notified of this action and of his appellate rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within a year thereafter. 2. The evidence received since the September 2008 VA rating decision, regarding service connection for enlarged prostate is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2008 VA rating decision, denying service connection for enlarged prostate, is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 19.52, 19.55, 20.1103 (2020). 2. New and material evidence has been received since the September 2008 VA rating decision to reopen service connection for enlarged prostate. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.156, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1969 to June 1971. In June 2018, the Board remanded the issues of service connection for hypertension, gastroesophageal reflux disease (GERD), and erectile dysfunction for additional evidentiary development. The issues of service connection for hypertension and GERD were granted in a May 2020 VA rating decision and the issue of service connection for erectile dysfunction was granted in a September 2019 VA rating decision. These decisions represent a full grant of the benefits sought so they are no longer on appeal before the Board. In June 2018, the Board also denied reopening the previously denied claim of entitlement to service connection for enlarged prostate and denied the issue of entitlement to service connection for prostate cancer. The Veteran appealed the June 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court) for the issue of whether to reopen the previously denied claim of entitlement to service connection for enlarged prostate. Counsel for the Veteran and the Secretary of VA (the parties) filed a partial Joint Motion for Remand (JMR). An Order of the Court dated June 26, 2019 granted the motion, affirmed the denial of service connection for prostate cancer, and remanded the issue of whether to reopen the previously denied claim of entitlement to service connection for enlarged prostate to the Board. In January 2020, the Board denied reopening the previously denied claim of entitlement to service connection for enlarged prostate. The Veteran appealed the January 2020 Board decision for this issue to the United States Court of Appeals for Veterans Claims (Court). On March 31, 2021, a memorandum decision set aside the January 2020 Board decision for this issue and remanded it to the Board. Before reaching the merits of the claim for enlarged prostate (other than prostate cancer), the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized this issue accordingly. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for enlarged prostate In the September 2008 VA rating decision, service connection for enlarged prostate was denied. The Veteran was notified of this action and of his appellate rights but did not appeal by filing a NOD or submitting new and material evidence within a year thereafter. Therefore, the September 2008 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 19.52, 19.55, 20.1103. In November 2011, the Veteran's letter to the VA Secretary was obtained and associated with the record and accepted as an informal claim to reopen service connection for enlarged prostate. Evidence received since the September 2008 VA rating decision includes the November 2011 statement from the Veteran asserting his enlarged prostate is due to herbicide exposure while he was in Vietnam. Although "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under [38 U.S.C. § 7104(b) (2012)]," any evidence supporting a new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Board finds that this evidence is new and material to the element of establishing a nexus on a direct basis due to herbicide exposure, which was not established at the time of the September 2008 VA rating decision. Evidence received since the September 2008 VA rating decision also includes a December 2016 VA treatment record that shows an assessment of benign prostatic hypertrophy (BPH) controlled with finasteride (medication). The Board finds that this evidence is new and material to the element of establishing a current disability, which was not established at the time of the September 2008 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS FOR REMAND 1. Entitlement to service connection for enlarged prostate (other than prostate cancer), to include as due to herbicide exposure Review of VA treatment records shows an assessment of possibly early BPH in June 2006, assessment of BPH in August 2011, and BPH controlled with finasteride (medication) in December 2016. A November 2019 VA treatment record also shows an assessment of BPH and the Veteran's report of being evaluated at EJ hospital for a prostate problem (was told he had an enlarged prostate that needed to be watched) and underwent screening at Tulane (was told his prostate was normal). In light of such evidence of record and the Veteran's presumed in-service herbicide exposure, the Board finds that additional development is needed to determine the etiology of enlarged prostate (other than prostate cancer), to include an attempt to obtain any outstanding private treatment records as identified by the Veteran in the November 2019 VA treatment record. 38 U.S.C. §§ 1110, 5103A(a) (2012); 38 C.F.R. §§ 3.159, 3.303 (2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that in the July 2021 written brief the Veteran's attorney raised the issue of service connection for this claim on appeal as secondary to another service-connected condition. While the Veteran is currently service connected for multiple disabilities, this raised contention is vague and evidentiary development on a secondary basis is not requested at this time. 2. Entitlement to service connection for heart disease, to include as due to herbicide exposure In June 2018, the Board denied the issue of entitlement to service connection for ischemic heart disease. The Veteran appealed the June 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court) for this issue. The parties filed a partial JMR. An Order of the Court dated June 26, 2019 granted the motion and remanded this issue to the Board. In January 2020, the Board remanded this issue for additional evidentiary development, specifically to obtain any outstanding VA and private treatment records, and for readjudication in a supplemental statement of the case (SSOC) after initial adjudication of the intertwined issue regarding service connection for hypertension. Outstanding VA treatment records were obtained and associated with the claims file in February 2020, March 2020, April 2020, July 2020, September 2020, October 2020, and May 2021. In a January 2020 notice letter, the Veteran was requested to identify VA and non-VA medical providers who have treated him for his claimed condition and to complete the attached VA Form 21-4142 and VA Form 21-4142a in order for VA to contact and request treatment records from identified medical sources. Additionally, the issue of service connection for hypertension was granted in a May 2020 VA rating decision, and the Veteran was notified of this decision in a June 2020 notice letter. The Board acknowledges that the issue of service connection for ischemic heart disease was denied in a May 2021 VA rating decision. Since there is no indication of record that this issue has been granted by the Agency of Original Jurisdiction (AOJ), it is still on appeal, readjudication in a SSOC is needed, and it should be returned to the Board for appellate review. "A remand by... the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the January 2020 remand is necessary prior to appellate review, and if not, "the Board itself errs in failing to ensure compliance." Id. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers relevant to his enlarged prostate (other than prostate cancer) and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility and/or provider identified by the Veteran, to include (a) EJ Hospital and (b) Tulane, both as identified in a November 2019 VA treatment record. If these records cannot be obtained, the AOJ must document the attempts that were made to locate them and the Veteran must be notified. 2. Then, schedule the Veteran for an examination with an appropriate clinician for enlarged prostate (other than prostate cancer). The entire claims file and a copy of this remand must be made available to the examiner for review. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's enlarged prostate (diagnosed as BPH even if since resolved) began during active service or is related to an incident of service, to include presumed in-service herbicide exposure. Note - It is not sufficient to provide an opinion that the Veteran's enlarged prostate (other than prostate cancer) is not directly due to herbicide exposure merely because it is not on the list of diseases and conditions presumptively linked with herbicide exposure. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.