Citation Nr: 21073093 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-08 206 DATE: December 7, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer, claimed as lymphedema of the lower extremities, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In March 2019, the Veteran presented testimony at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A hearing transcript is of record. In a March 2021 letter, the Board offered the Veteran the opportunity to testify at a hearing before another VLJ who would ultimately decide the appeal. The letter also notified the Veteran that, if he did not respond within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. To date, the Veteran has not responded. In August 2020 and May 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer, claimed as lymphedema of the lower extremities, is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board's May 2021 remand requested an addendum opinion medical opinion be acquired that explicitly addressed evidence, to include the March 2019 Board hearing testimony regard lymphedema and the VA medical records that appear to document assessments of lymphatic damage. The previous Board decision noted explicitly that the previous examinations and medical opinions, to include the September 2016, October 2020, and November 2020 VA opinions, were incomplete as they did not address that relevant evidence demonstrating potential lymphatic damage during the Veteran's September 2011 radical perineal prostatectomy or the Veteran's expert testimony. Therefore, the Board's remand requests explicitly noted that any examination report must address that evidence. A close review of the most current June 2021 VA opinion shows that the VA examiner did not comply with the Board's remand request, and the report did not address the VA medical records that appear to document assessments of lymphatic damage. In fact, the June 2021 VA opinion states that there is no medical evidence to support the claimed operative injury. Therefore, it appears that the opinion is based on an inaccurate or incomplete factual premise. Therefore, the Board finds that all remand instructions were not completed. Consequently, the Board cannot consider the development requested to be substantially accomplished, and the claim must be again remanded to complete the requests in the May 2021 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for the claimed disabilities on appeal, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination, conducted by a medical doctor who has not previously examined the Veteran, to assist in determining the etiology of any residuals of prostate cancer, to specifically include lower extremity lymphedema, and any relationship to VA treatment. The examiner must review the record, including this Remand, the August 2020 Board Remand, the May 2021 Board Remand, and VA clinical documentation dated on March 12, 2018 stating the Veteran had lymphatic damage, and should note that review in the report. A rationale for all opinions should be provided. The examiner should address any lay statements, including those made during the Veteran's March 2019 Board hearing, regarding the claimed disability and its etiology and should reconcile the opinion with any previous opinions of record. The examiner is advised that the Veteran, as a medical doctor, is competent to report symptoms and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so and explain the disagreement. The examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has any additional disability, to include lower extremity lymphedema, as a result of radical perineal prostatectomy performed at the Detroit VA Medical Center (VAMC) in September 2011? (b.) If there is additional disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment to the Veteran? (c.) If there is additional disability, is it at least as likely as not (50 percent or greater probability) that the additional disability is the result of an event not reasonably foreseeable? The examiner must discuss the significance of the VA clinical documentation dated on March 12, 2018 stating the Veteran had lymphatic damage. Whether the proximate cause of any additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.