Citation Nr: 21076932 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 14-24 105 DATE: December 28, 2021 REMANDED Entitlement to service connection for residuals of prostate cancer, status post prostatectomy, is remanded. Entitlement to service connection for erectile dysfunction with loss of use of the creative organ is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1979 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a hearing before the undersigned. This matter was previously remanded by the Board in October 2016, February 2018, and January and December 2020. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection for residuals of prostate cancer, status post prostatectomy, is remanded. 2. Entitlement to service connection for erectile dysfunction with loss of use of the creative organ is remanded. In December 2020, the Board remanded this matter with instructions for the Agency of Original Jurisdiction (AOJ) to obtain an advisory opinion from an independent medical expert in accordance with 38 U.S.C. § 5109; however, in April 2021, the AOJ requested an opinion from the Compensation and Pension Service. There is no indication in the claims file the AOJ ever attempted to obtain an independent medical opinion or any explanation for why such opinion could not be obtained. As a result, this matter must be remanded to ensure compliance with the Board's prior remand directive to obtain an advisory opinion from an independent medical expert. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the opinion obtained in May 2021, as amended in August 2021, is insufficient. In this regard, the selected expert was directed to consider and comment on academic/scientific research evidence the Veteran provided asserting a possible link between exposure to chemicals, such as those in diesel fuel and gasoline, and the incurrence of prostate cancer later in life. In the May 2021 opinion, as amended in August 2021, the examiner stated that the retrospective observational study provided by the Veteran was interesting and raises important questions, but ultimately dismissed this research because it was hardly definitive. By using the language "hardly definitive," it appears as though the VA examiner imposed a higher standard of proof than the "at least as likely as not" standard. As stated in the December 2020 remand, it is not necessary for the Veteran to show conclusive, absolute, or substantial evidence of causation. Rather, it is sufficient when the evidence that weighs for a finding that the Veteran's in-service exposure to gasoline, diesel fuel, and other such chemicals caused his prostate cancer is at least evenly balanced with the evidence that weighs against such a finding. In this regard, Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits. Congress, through 38 C.F.R. § 5107(b)'s low standard of proof for all issues material to a claim for veterans benefits, has authorized VA to resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in "approximate balance." See Wise v. Shinseki 26 Vet. App. 517, 531-32 (2014). In turn, the Board, when evaluating that evidence, cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule. See id. at 532. Therefore, the Board cannot reject potentially favorable medical literature of record because it espouses a medical principle that is "hardly definitive." See id. at 531. Thus, remand is warranted for a new opinion. The matters are REMANDED for the following action: Obtain an expert opinion from a urologist pursuant to 38 U.S.C. § 5109 that addresses the following question: Is it at least as likely as not (50 percent probability or more) that the incurrence of the Veteran's prostate cancer and/or any current related residuals, to include erectile dysfunction and urinary incontinence, was caused by or is otherwise related to the Veteran's service, to include his exposure to gasoline, diesel fuel, and other such chemicals, as a petroleum heavy vehicle operator. It is not necessary for the evidence to show conclusive, absolute, or substantial evidence of causation. Rather, it is sufficient that the evidence that weighs for a finding that the Veteran's in-service exposure to gasoline, diesel fuel, and other such chemicals caused his prostate cancer is at least evenly balanced with the evidence that weighs against such a finding. The expert is advised that the evidence must show causation, not just correlation. The selected expert must specifically consider and comment on (a) the Veteran's statements during the July 2016 Board hearing regarding his exposures to chemicals during service (b) academic/scientific research evidence the Veteran provided asserting a possible link between exposure to chemicals, such as those in diesel fuel and gasoline, and the incurrence of prostate cancer later in life (including the cited case study which indicates an increased risk of prostate cancer in men with substantial exposure to diesel fuel), and (c) the April 2014, July 2014, and July 2016 Disability Benefit Questionnaire, medical records, and associated opinions provided by Dr. B.D., the Veteran's private physician. The expert must also address his or her qualifications to provide the requested opinion, to include a discussion of whether an expert in another specialty would be more well suited to address the question at hand. The expert is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the expert rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.