Citation Nr: 21015542 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-07 829 DATE: March 17, 2021 REMANDED Entitlement to an evaluation in excess of 60 percent for service-connected residuals of prostate cancer, status post radical prostatectomy, is remanded. Entitlement to compensation under 38 U.S.C.§1151 for an additional disability as a result of VA-contracted radiation treatments for service-connected prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1969 to January 1971, to include service in the Republic of Vietnam. He also has prior inactive service of an unspecified nature. These matters come before the Board of Veterans' Appeals (the Board) on appeal from multiple rating decisions from the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. In December 2017, the Veteran presented testimony in support of his appeal at a Board hearing conducted by the undersigned Veterans Law Judge via videoconferencing equipment. A transcript of the December 2017 hearing is associated with the file. In November 2018 and April 2020, the Board, among other actions, remanded the issues on appeal for further evidentiary and procedural development. The Board’s prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate reconsideration. 1. Entitlement to an evaluation in excess of 60 percent for service-connected residuals of prostate cancer, status post radical prostatectomy, is remanded. 2. Entitlement to compensation under 38U.S.C.§1151 for an additional disability as a result of VA-contracted radiation treatments for service-connected prostate cancer is remanded. After partial completion of the Board’s prior remand directives, as will be discussed below, the Veteran’s appealed issues were readjudicated by the AOJ in an October 2020 Supplemental Statement of the Case (SSOC) which continued to deny such. Subsequently, in November 2020, the Veteran’s representative contacted the Board to report that the Veteran was hospitalized at a VA facility from November 16, 2020, to November 17, 2020, for surgical treatment of a bladder neck contracture, to include deep lateral transurethral incisions of bladder neck contracture (TUIBNC), Foley catheter placement, and “removal of bladder chips.” The Veteran claims that these additional complications are either (1) residuals of his service-connected prostate cancer, status post radical prostatectomy, or (2) additional disabilities as a result of VA-contracted radiation treatments for service-connected prostate cancer. The above evidence and assertions clearly impact one or both of the issues before the Board; however, these determinations are medical in nature, and thus, outside of the Board’s purview. Accordingly, another remand is necessary to clarify these complex medical matters. Moreover, because of the Veteran’s assertions of fault on behalf of his VA-contracted radiation treatments and the complex medical picture presented in this case, the Board concludes that advisory opinions from an independent medical expert is necessary under 38 U.S.C. § 5109(a) and 38 C.F.R. § 3.328. Additionally, the Board observes that the prior remand directed the AOJ to seek and obtain any informed consent forms completed by the Veteran in connection with his radiation treatments from January 2020 to March 2010 at Radiation Oncology, LLC. and South Carolina Oncology Associates in coordination with Palmetto Richland Cancer Center. The Veteran completed a VA release for these records, and the AOJ submitted such to the private provider via facsimile; however, this request was refused because of the medium utilized. Specifically, Palmetto Richland Cancer Center stated that their policy is to only accept requests by facsimile for “continuing care” purposes, and all other requests must be sent via mailings, and an address was provided. With the above in mind, the Board notes that the Veteran receives “continuing care” for his genitourinary disabilities at VA medical facilities, so it is unclear why Palmetto Richland Cancer Center refused to provide the requested documents. Further, it is unclear why the AOJ did not send a duplicate request for these records via mailings to the identified address. Accordingly, the AOJ must make additional efforts to obtain any outstanding records from Radiation Oncology, LLC. and South Carolina Oncology Associates in coordination with Palmetto Richland Cancer Center, to specifically include any and all completed informed consent forms in connection with the VA-contracted radiation treatment from January 2010 to March 2010. Lastly, the August 2020 VA opinions addressing the Veteran’s appeal brought under 38 U.S.C. § 1151 were largely premised on the examiner’s “99%” confidence level that the risks of the radiation treatment, to include urinary incontinence, hematuria, rectal bleeding, radiation cystitis, radiation proctitis, and erectile dysfunction, were explained to, and understood by, the Veteran prior to consenting to the radiation treatment sessions from January 2010 to March 2010. However, it is unclear how such certainty is possible because, as noted above, the record does not include informed consent forms completed by the Veteran in connection with these treatments. As such, the independent medical expert will also be requested to provide medical advisory opinions regarding these matters. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. The AOJ must request that the Veteran identify and complete releases for all private treatment records associated with the disabilities addressed within this remand. For each release that the Veteran completes and submits, the AOJ must make two attempts to obtain the identified records and notify the Veteran if any such records cannot be acquired. *The Board is particularly interested in any and all informed consent forms executed in connection with the radiation treatments completed by Radiation Oncology, LLC. and South Carolina Oncology Associates in coordination with Palmetto Richland Cancer Center between January 2010 and March 2010. *Regarding the informed consent forms, the AOJ must contact Radiation Oncology, LLC. and South Carolina Oncology Associates in coordination with Palmetto Richland Cancer Center via the U. S. mail system at the address provided in June 2020 by Palmetto Health Richland. This request must note that the Veteran receives continuing care for his genitourinary symptoms associate with prostate cancer for which he received treatment at that facility in 2010. *The AOJ must seek these informed consent forms until they are obtained or a negative response is provided by the private provider. In the event that these informed consent forms are found to be unavailable for review, the AOJ must document this in the Veteran’s file with a formal finding of unavailability that explains whether such records never existed or did exist, but could not be obtained. 3. Thereafter, pursuant to 38 U.S.C. § 5109(a), the AOJ must obtain advisory medical opinions from an independent medical expert who specializes in Urology. After the clinician reviews the complete file, he/she is requested to address the following: a. Was the Veteran’s bladder neck contracture, necessitating deep lateral transurethral incisions of bladder neck contracture (TUIBNC), Foley catheter placement, and “removal of bladder chips:” i. A residual of the Veteran’s service-connected prostate cancer? or ii. Additional disabilities caused by the Veteran’s VA-contracted radiation treatments from January 2020 to March 2010? *If the response to part 3 (a) (i) is affirmative, the clinician does not have to proceed further. b. If the response to part 3 (a) (ii) is affirmative, provide an opinion concerning whether it is at least as likely as not that such is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA-contracted provider administering treatment? c. If the response to part (3) (b) is negative, was the disability at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered bladder neck contracture, necessitating deep lateral transurethral incisions of bladder neck contracture (TUIBNC), Foley catheter placement, and “removal of bladder chips,” to be ordinary risks of the Veteran’s radiation treatments from January 2010 –March 2010. *In addressing the above, the examiner is asked to refer to the informed consent forms obtained downstream from the above remand directive, and if no such forms are obtained, discuss whether radiation treatments were commonly completed in 2010 without having the patient sign informed consent forms. The clinician should provide a complete rationale for all opinions rendered. The clinician should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the clinician finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. Thereafter, if the specialist’s response to part 3 (a) (i) was affirmative, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate severity of his service-connected residuals of prostate cancer. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and laboratory tests should be conducted. The examiners must describe the frequency and severity of the manifestations of the Veteran’s service-connected residuals of prostate cancer, to specifically include necessitating deep lateral transurethral incisions of bladder neck contracture (TUIBNC), Foley catheter placement, and “removal of bladder chips, urinary frequency and urinary incontinence. *In evaluating the Veteran’s service-connected disability, the DBQs pertaining to voiding dysfunction, urinary frequency, obstructive voiding, and urinary tract infections, as to fully and accurately reflect the Veteran’s symptoms. *When reporting the Veteran’s residuals of prostate cancer, the examiner is asked to provide statements which attempt to differentiate which symptoms are attributable to which residual disability of prostate cancer. If such differentiation is not possible, this must be clearly stated. If the examiner cannot provide any opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must readjudicate the remaining issues on appeal in light of the additional evidence added to the record. If any benefit remains denied, the Veteran and his representative should be furnished with a copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.