Citation Nr: 21011979 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-15 746 DATE: March 3, 2021 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of prostate cancer treatment is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1958 to January 1960. In April 2017, the Veteran and his spouse testified at a Board hearing. The transcript is of record. In January and December 2020, the Board remanded the case for further development, which was not completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of prostate cancer treatment The Board regrets the additional delay; however, a remand is necessary to ensure compliance with the Board’s prior remand instructions and to ensure that due process is met. Id. In January 2020, the Board remanded for a medical opinion to address whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA medical center in providing the Veteran’s treatment for prostate cancer. The remand directives instructed the examiner to consider and discuss the contention that the treatment provided was excessive and the medical records indicating that the Veteran’s symptoms of urgency, dysuria, inability to empty his bladder and difficulty starting urination stem from his radiation treatment. The medical opinion obtained February 2020 opined that it was less likely than not that prostate cancer and its residuals was caused by or became worse as a result of VA treatment to include due to carelessness, negligence, lack of proper skill, or error in judgment. The rationale consisted of citations to the treatment note from August 11, 2011 reporting that external beam radiation was the only option should the Veteran opt for treatment, the August 22, 2012 treatment note from Dr. H. indicating that the wife’s concerns regarding the recommended treatment of external beam radiation were legitimate and Up-To-Date noting that symptoms such as urinary urgency and dysuria may be related to external beam radiation. The Board found the opinion inadequate as it failed to consider and discuss the contention that the treatment was excessive and failed to provide an adequate rationale with clear conclusions with supporting data and a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the December 2020 remand requested an addendum opinion to address the contentions of the Veteran and his spouse with a rationale that considers and discusses the facts and medical principles specific to the case at hand. Another opinion was obtained by the same examiner in December 2020 who again provided a negative nexus with a rationale that only included citations to the medical records and phraseology indicating that the evidence was reviewed with no reasoned medical explanation. Unfortunately, this leaves the Board with another inadequate medical opinion as the examiner again failed to consider and discuss the contentions of the Veteran and his spouse and did not provide a rationale reflecting the facts and medical principles specific to the Veteran’s claim with a reasoned medical explanation. Id. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding treatment records pertaining to the Veteran’s treatment for prostate cancer, to include external beam radiation. In particular, any documentation of Veteran’s informed consent concerning external beam radiation should be obtained and associated with the claims file. 2. After the above development is completed, obtain an opinion from a suitably qualified physician addressing the issue of entitlement to compensation under 38U.S.C. §1151 for residuals of prostate cancer treatment. After review of the evidence of record, the examiner with appropriate expertise of prostate cancer should furnish an opinion with respect to the following questions: (a.) Are the Veteran’s residual symptoms, to include urgency, dysuria, inability to empty his bladder and difficulty starting urination, and/or aggravation of his service connection gastric syndrome proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of faulty on the part of the VA medical center providing treatment consisting of 45 treatments of radiation (alleged to be excessive) for the Veteran’s prostate cancer? (b.) If the response to (a.) is negative, is there a current disability caused by VA treatment that is due to an event not reasonably foreseeable? The examiner should discuss the Veteran’s need for external beam radiation and the alternative options available at the time of treatment and provide an opinion as to whether informed consent was given by the Veteran prior to undergoing treatment. When answering the above question, the examiner should not focus on whether the event was actually foreseen but should instead address whether a reasonable medical practitioner would have foreseen the event or additional disability. The examiner must also consider and address the following: 1) the contentions of the Veteran and his spouse that the treatment received was excessive based on his age and the amount of cancer at the time of treatment; 2) the August 2012 treatment notes from Dr. H. indicating the concerns of the Veteran and his spouse are legitimate; and 3) the August 2012 urology treatment records reporting that the Veteran’s current symptoms of urgency, dysuria, inability to empty his bladder and difficulty starting urination stem from his radiation treatment. 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. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. 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 S. A. Prinsen 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.