Citation Nr: 21014817 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-10 225 DATE: March 15, 2021 REMANDED Service connection for benign prostatic hypertrophy (BPH), to include due to in-service herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1969 to June 1973. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the December 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision denied service connection for BPH. The Veteran’s Notice of Disagreement (NOD) was received in January 2016. The Statement of the Case was issued in January 2016, and the Veteran VA Form 9, substantive appeal to the Board was received in March 2016. In July 2019 the claim was remanded for further development and adjudication. As set forth below, a medical opinion based upon adequate rationale was not provided, and the matter must be remanded for substantial compliance with the previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for BPH, to include due to herbicide exposure. The Veteran seeks service connection for BPH and contends that his disability is a result of his in-service exposure to Agent Orange. The Veteran’s personnel records confirm that the Veteran served in the Republic of Vietnam during the Vietnam era, and therefore, exposure to Agent Orange is presumed. Pursuant to the July 2019 Board remand, the Veteran was afforded a VA examination in January 2020 for an opinion as to the nature and etiology of his BPH. Then, the examiner was asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s BPH is related to service to include through direct Agent Orange exposure. The Veteran underwent a VA examination in January 2020. The examination report is on a prostate cancer disability benefits questionnaire (DBQ), and under Section I – Diagnosis, the “yes” box is checked in Section 1A, corresponding to the question, “Does the Veteran now have, or has he ever been diagnosed with, prostate cancer?” Then, under Section 1B – Provide Only Diagnoses That Pertain To Prostate Cancer, the examiner listed BPH and erectile dysfunction. The examiner also indicated that the Veteran was in “remission” but that the Veteran was not undergoing any treatment for prostate cancer and had never completed any past treatment for prostate cancer. The VA examiner concluded that the Veteran’s BPH was less likely than not incurred in or caused by the Veteran’s service. For rationale, the VA examiner stated that the Veteran’s separation examination and all pertinent medical records did not show that the Veteran had BPH or erectile dysfunction (ED) in service. The January 2020 VA examination report is wholly inadequate and does not comply with the July 2019 Board directives. First, the examiner’s finding of a diagnosis of prostate cancer is entirely inconsistent with the other medical evidence of record. Inexplicably, the January 2020 VA examination report indicates that the Veteran has been diagnosed with prostate cancer and has not undergone treatment. As the examiner provided no objective findings to support a diagnosis of prostate cancer; and, as there is no corroborating evidence to suggest a diagnosis of prostate cancer, clarification is necessary. Unlike BPH, which is a benign condition, prostate cancer is a malignancy, and it is also a disability enumerated under 38 C.F.R. § 3.307(e), for which service connection may be presumed in Agent Orange exposed veterans. 38 C.F.R. § 3.307(d). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213, 216 (1992). Accordingly, a VA addendum opinion is required. Namely, the VA examiner is requested to review the January 2020 VA examination report and indicate whether the Veteran does or does not have a diagnosis of prostate cancer. Next, the January 2020 VA medical opinion does not address the very question that was posed in the July 2019 Board remand directives. The examiner was specifically asked whether the Veteran’s BPH was, as likely as not, related to the Veteran’s exposure to Agent Orange. As noted above, the Veteran has qualifying service in the Republic of Vietnam and is presumed to have been exposed to herbicides in service. Service connection is presumed for certain diseases if a veteran is exposed to an herbicide agent, such as Agent Orange, during active service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. As noted above, prostate cancer is one of those listed diseases for which the presumption applies; however, BPH is not one of the disabilities listed. However, service connection on a direct basis is not precluded merely because the disease is not one of those enumerated under 3.307(e). In other words, a disease need not be presumed due to Agent Orange exposure to warrant service connection; however, there must still be a nexus between the in-service injury (Agent Orange exposure in this case) and the current disability (BPH). Combee v. Brown, 34 F. 3d 1039, 1043-1044 (Fed. Cir. 1994). In essence, the mere absence of the disability on the presumptive list, alone, is not an adequate basis for denial of service connection. In this case, the Veteran asserts that he was diagnosed with BPH after service, and that his BPH was caused by in-service exposure to Agent Orange. The Veteran’s January 2016 VA Form 9 indicates that the Veteran’s BPH manifested within the half-life of the contaminating dioxins found in Agent Orange. The July 2019 Board remand directives explicitly require the VA examiner to address whether BPH is related to the Veteran’s service “to include through direct AO exposure.” Instead, the January 2020 VA examiner simply stated that there was no nexus between BPH and service because the Veteran’s discharge examination and all pertinent medical records indicate that the Veteran did not have BPH or ED in service. In essence, the VA examiner stated that the Veteran’s disability is not related to service because it was not documented during service. This does not address whether BPH was caused by in-service Agent Orange exposure. The remainder of the January 2020 VA examination report likewise does not address exposure to herbicides. Accordingly, the opinion provided in this case does not comply with previous Board remand directives, and, as noted above, appears to suggest that the Veteran has prostate cancer, which is inconsistent with the other medical evidence of record. Accordingly, a new examination is necessary. Stegall, 11 Vet. App. at 271 (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence is essential for a proper appellate decision”). The matter is REMANDED for the following action: As previously requested, obtain a VA medical opinion as to the nature and etiology of the Veteran’s BPH, including due to presumed exposure to Agent Orange in service. The VA examiner is requested to review all pertinent records associated with the claims file, including copies of the July 2019 Board remand, the January 2020 VA examination report, and this remand. The VA examiner is requested to opine as to the following: (a.) Given the January 2020 examiner’s apparent, and inexplicable, diagnosis of prostate cancer, the new VA examiner is requested to review the January 2020 VA examination report and opine as to whether the Veteran has a current diagnosis of prostate cancer or was previously diagnosed with prostate cancer. (b.) Whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s BPH is related to an in-service injury, event, or disease, including the Veteran’s presumed exposure to Agent Orange. The VA examiner is reminded that the mere absence of a disability from the list of diseases that are presumed to be due to Agent Orange, alone, is not an adequate basis for a negative opinion. The VA examiner is reminded that the mere absence of the disability in the Veteran’s STRs is not an adequate basis for a negative opinion. The VA examiner is requested to provide a full rationale for all conclusions reached. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.