Citation Nr: 21015545 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-31 604 DATE: March 17, 2021 REMANDED Entitlement to service connection for benign prostatic hypertrophy (BPH) with polyuria as secondary to service-connected type 2 diabetes mellitus is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1970 to December 1971. The Board remanded this claim back to RO (Agency of Original Jurisdiction (AOJ)) in July 2015, November 2018 and most recently in September 2020 to obtain supplemental medical comment concerning whether the Veteran’s service-connected type 2 diabetes mellitus is aggravating his BPH since two opinions are required in secondary service connection claims (i.e., one concerning whether the service-connected disability caused the condition being additionally claimed and another regarding whether the service-connected disability alternatively is aggravating the condition being additionally claimed). See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995); and El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Veteran consequently most recent underwent a VA examination in November 2020. This VA examiner indicated that medical evidence is not sufficient to support a determination of a baseline level of severity prior to aggravation because there is not enough clinical evidence to determine whether the polyuria is due to BPH or type 2 diabetes mellitus. In a January 2021 addendum medical opinion, the VA examiner further explained that she was unable to speculate whether BPH is aggravated by type 2 diabetes mellitus because the exact relationship between BPH and type 2 diabetes mellitus remains unclear. In support of her conclusion, this commenting clinician cited to a 2009 article entitled The Impact of Diabetes Type 2 in the Pathogenesis of Benign Prostatic Hyperplasia: A Review, which conversely also seems to recognize that evidence suggests that, while the relationship between the two conditions is unclear, an association through a common pathogenic mechanism is possible. The VA examiner also noted that, according to studies, there is clinical uncertainty due to the fact that both type 2 diabetes mellitus and BPH lead to dysfunctional bladder storage and emptying and, therefore, makes it difficult to determine which one is contributing to the symptoms. Here, though, an October 2019 VA examiner already determined that the Veteran’s polyuria was solely due to his BPH. Therefore, the November 2020 VA examiner’s focus on whether polyuria is secondary to BPH or type 2 diabetes mellitus does not address the question that was posed by the Board in the September 2020 remand. What needs to be determined in this case is whether the Veteran’s service-connected type 2 diabetes mellitus is aggravating the BPH, itself, not the polyuria associated with the BPH (even if exclusively associated with it and not at all due to the diabetes). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. at 270-71 (1998). As there was not acceptable substantial compliance with the Board’s prior remand directives, and in accordance with Stegall, still more development of this claim is required. See also Dyment v. West, 13 Vet. App. 141 (1999) (noting that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).   Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain another supplemental (addendum) medical opinion, preferably from a urologist, regarding the etiology of the Veteran’s BPH with associated polyuria, which he is alleging are secondary to his service-connected type 2 diabetes mellitus. If necessary, to respond to the questions being asked, schedule him for another VA examination to obtain this needed additional comment concerning the nature and etiology of this claimed disability. All indicated testing and evaluation must be completed and the findings reported in detail. All relevant medical records must be made available to the examiner for review, including a complete copy of this remand. After reviewing the claims file, including this remand, the examiner is asked to answer the following questions: If, as the prior VA examiners concluded, the Veteran’s service-connected type 2 diabetes mellitus did not cause his BPH with polyuria, is it alternatively at least as likely as not (a 50 percent probability or greater) that his BPH with polyuria instead are aggravated by his service-connected type 2 diabetes mellitus? *In essence, the October 2019 VA examiner previously charged with making this important determination attributed the polyuria entirely to the BPH as reason for concluding there is not aggravation. But, notably, the examiner did not indicate whether the diabetes is aggravating the BPH (i.e., not just the polyuria associated exclusively with the BPH). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of BPH with polyuria by the service-connected type 2 diabetes mellitus. *The November 2020 VA examination and January 2021 addendum still have failings because, to reiterate, what needs to be determined in this case is whether the Veteran’s service-connected type 2 diabetes mellitus is aggravating the BPH, itself, not the polyuria associated with the BPH (even if exclusively associated with it and not at all due to the diabetes). The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. It is essential the examiner provide explanatory rationale, whether responding favorably or unfavorably, preferably citing to specific evidence in the file supporting conclusions and/or accepted medical authority. If the examiner cannot provide the requested opinions without resorting to mere speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence in the case, a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner, or whatever other reason). If the inability to provide an opinion without resorting to mere speculation is due to a deficiency in the record (additional facts are required), develop the claim to the extent necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.