Citation Nr: 21023331 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-29 183 DATE: April 20, 2021 ORDER Entitlement to service connection for benign prostatic hyperplasia (BPH), also known as enlarged prostate, is denied. REMANDED Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for a lumbar spine disorder, to include degenerative arthritis and intervertebral disc syndrome (IVDS), is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War and herbicide agent exposure is presumed. 2. The Veteran’s BPH did not manifest in service, or for many years thereafter, is not a presumptive condition for chronic disease or herbicide agent exposure, and is not otherwise related to service, including exposure to an herbicide agent. CONCLUSION OF LAW The criteria for entitlement to service connection for BPH have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1962 until April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 Department of Veterans Affairs (VA) regional office (RO) rating decision. In November 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board. A transcript of the hearing is in the record. In October 2019, the Board sent correspondence to the Veteran notifying him that the VLJ who conducted the November 2014 hearing is no longer employed by the Board. The Veteran was notified of his right to a hearing before a VLJ who would decide the claim. However, the Veteran did not respond, and he is considered to have waived that right. The Board remanded the appeal in September 2018, for further development of the record. Specifically, the Board directed the RO to obtain the Veteran’s treatment records from the VA Connecticut Healthcare System. The RO obtained the Veteran’s treatment records from the VA Connecticut Healthcare System from April 2016 through February 2019. These matters were again before the Board in December 2019. At that time, the Board remanded the claims so the RO could obtain the Veteran’s full treatment records from the VA Connecticut Healthcare System prior to April 2016. The RO complied with the Board’s December 2019 remand directives, but the Board remanded the claims again in November 2020 in order to obtain any outstanding VA treatment records and to obtain an addendum VA medical opinion regarding the nature and etiology of the Veteran’s BPH, bilateral upper and lower peripheral neuropathy, and lumbar spine disability. The appeal has now been returned to the Board for further appellate review. The Veteran contends that his BPH and bilateral upper and lower peripheral neuropathy are related to herbicide exposure during his service in Vietnam. He also contends that his lumbar spine condition is attributable to his military occupational specialty as an Air Freight Specialist, which required a great deal of heavy lifting loading and unloading airplanes. The Veteran further maintains that a remand is warranted to determine if the claimed conditions are a result of his service related duties as a Freight Specialist and also if they are a result of his hazardous duties in a combat environment in Vietnam. Service Connection To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (2004). Alternatively, service connection may be granted for a listed chronic disease although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year after separation. 38 U.S.C. § 501; 38 C.F.R. §§ 3.303(b); 3.307, 3.309(a). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 U.S.C. § 501; 38 C.F.R. § 3.309(e). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. For purposes of 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. See 38 C.F.R. § 3.309(e), Note 2. Additionally, early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(6)(ii). Service connection may also be granted for a listed chronic disease although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year after separation. 38 C.F.R. §§ 3.303(b); 3.307, 3.309(a). Entitlement to service connection for BPH At the outset, although it is conceded that the Veteran was exposed to herbicide agents during his military service, the Veteran does not have prostate cancer, but his prostate condition is that of an enlarged prostate, which is not a presumptive condition. Therefore, the Veteran’s BPH does not qualify as a presumptive condition to establish service connection. Additionally, the Veteran’s BPH is not a listed chronic disease and is not shown to have developed within one year from his separation from service. Indeed, a December 1966 prostate examination was normal. Further, in a December 2012 statement, he reported that he did not have problems with frequent urination and urinary retention until “recently.” Thus, presumptive service connection under the chronic disease provision is also not warranted. 38 U.S.C. § 501; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Per the November 2020 Board remand, the Veteran was afforded an addendum opinion in December 2020, to determine whether the Veteran’s BPH is at least as likely as not directly related to his military service. The examiner determined that there is a lack of evidence per review of medical records that the Veteran’s BPH had its onset during or within one year of service, as discussed above, and there is also a lack of evidence in medical literature that BPH is related to Agent Orange, which led him to conclude that BPH less likely directly related to service. The examiner stated that records from June 2013, July 2014, and July 2019 were reviewed, and it was acknowledged that Agent Orange exposure had been noted in the medical record. The examiner explained that there is a correlation between Agent Orange exposure and prostate cancer. However, based on review of the Veteran’s medical records, there is no history of, or current diagnosis of, the Veteran having prostate cancer. The medical literature did not show a relationship between herbicide exposure and BPH. Accordingly, the Veteran’s BPH is not at least as likely as not directly related to his military service. The Board finds that the December 2020 BPH addendum opinion sufficiently met the directives of the November 2020 Board remand and that the December 2020 addendum opinion is the most probative evidence of record. The examiner thoroughly reviewed the medical records in the claims file and provided clear rationale for the conclusions provided. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). Further, the Board notes that the Veteran has not raised any issue with the December 2020 opinion. There is nothing in the record that contradicts the opinion of the examiner. Although Agent Orange exposure was noted in a May 2013 medical report, no opinion clearly finding a relationship between the Veteran’s BPH and Agent Orange exposure is provided in the medical records. See LeShore v. Brown, 8 Vet. App. 406 (1995) (holding that a lay history is not transformed into competent evidence merely because it was transcribed by a medical professional). Indeed, at the 2014 Board hearing, the Veteran stated that no medical professional told him that his prostate enlargement is related to service herbicide exposure. As such, the December 2020 BPH addendum opinion is the most probative evidence of record. To the extent that the Veteran has stated that his BPH is attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his BPH because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, the VA examiner was asked to consider the Veteran’s theory, and found it less likely. Accordingly, the Veteran’s opinion as to the diagnosis or etiology of his BPH is not competent medical evidence. The Board finds the opinion of the December 2020 examiner to be significantly more probative than the Veteran’s lay assertions. Therefore, the Board finds that the preponderance of the probative evidence of record does not warrant entitlement to service connection for BPH. There is no doubt to be resolved in this case. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for left upper extremity peripheral neuropathy 2. Entitlement to service connection for right upper extremity peripheral neuropathy A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding service connection for left upper extremity peripheral neuropathy and right upper extremity peripheral neuropathy, the November 2020 Board remand directed that the VA addendum opinion examiner comment on the July 2019 VA examination, June 2013 post-service treatment records, and July 2014 treatment records. The examiner stated that the records were reviewed and provided an opinion based on the review of those records. However, a July 2014 medical report provides an opinion from an attending physician which states that the “etiology of the upper extremity neuropathy is likely related to prior alcohol use, and/or Agent Orange exposure.” The examiner failed to address the July 2014 opinion of the attending physician, and as such, did not satisfactorily comply with the November 2020 Board remand. See Stegall. Also, by not considering the July 2014 opinion of the attending physician, the examiner did not provide an adequate rationale for the conclusion rendered based on all the relevant facts. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, the December 2020 addendum opinion is not adequate, as it pertains to the matter of service connection for bilateral upper extremity peripheral neuropathy. See Barr. Accordingly, remand is warranted for further development. 3. Entitlement to service connection for a lumbar spine disorder is remanded The Veteran contends that his job as an Air Freight Specialist required him to do a lot of heavy lifting loading and unloading airplanes, and it was this hard work that caused his lumbar spine disorder. He stated in the November 2014 Board hearing that following his separation in service he did not perform any heavy lifting. A December 2012 medical note described the Veteran’s back pain as “life long.” Therefore, it is apparent that the Veteran maintains that the back pain has been occurring for a long time and is attributable to his military service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno. In July 2019, the Veteran was afforded a VA lumbar spine examination. The examiner opined that the Veteran’s lumbar spine disorder is less likely related to service because it presented several years post service and there is a lack of lumbar condition being incurred during service. However, in providing the opinion the examiner failed to address the high degree of heavy lifting involved in unloading and unloading airplanes during the Veteran’s service and the absence of such heavy lifting following his separation, and did not consider the Veteran’s lay statements. See Barr; see also Layno. Therefore, the examiner did not consider all the relevant facts involved in the Veteran’s particular case, with a fully articulated opinion based on sound reasoning, rending the opinion inadequate. See Nieves-Rodriguez. The November 2020 Board remand did not direct the December 2020 addendum examiner to address the issue of direct service connection, and the December 2020 examiner did not take-up this issue. Therefore, the issue of whether the Veteran’s lower spine disorder is related to the Veteran’s duties as an Air Freight Specialist has not been adequately addressed. See Barr. As such, remand is warranted for further development. 4. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded 5. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded The July 2019 VA lumbar spine examination and December 2020 addendum opinion indicate that the Veteran’s left and right lower extremity peripheral neuropathy is related to his lower spine disorder. The December 2020 examiner stated that the Veteran’s “lumbar radiculopathy is due to nerve compression related to lumbar degenerative disc disease.” The examiner also opined that the Veteran’s left and right lower extremity peripheral neuropathy is at least as likely caused by the Veteran’s lumbar degenerative disc disease and IVDS. The examiner provided a thorough rationale for the opinion, explaining that the most common etiology of lumbosacral radiculopathy, or neuropathy, is nerve root compression caused by a disc herniation or spondylosis, which is narrowing of the intraspinal canal, the lateral recess, or the neural foramen due to degenerative arthritis affecting the spine. Therefore, the evidence establishes that the Veterans bilateral lower extremity peripheral neuropathy is secondary to his lumbar spine disorder. As such, the issue of entitlement to service connection for left and right lower extremity peripheral neuropathy is inextricably intertwined with the issue of service connection for lower spine disorder and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Accordingly, remand is warranted pending a determination of service connection for lumbar spine disorder. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Thereafter, obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran's bilateral upper peripheral neuropathy. If the examiner determines that a physical examination is necessary, then one should be scheduled. The claims folder, to include a copy of this remand, must be reviewed in conjunction with the examination and opinion. The VA examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater degree of probability) that the Veteran's bilateral upper peripheral neuropathy is etiologically related to the Veteran’s conceded exposure to herbicides. In providing the opinion, the examiner must address the July 2014 opinion of the attending physician which states that the “etiology of the upper extremity neuropathy is likely related to prior alcohol use, and/or agent orange exposure.” The examiner must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Schedule the Veteran for an appropriate examination for an opinion on the nature and etiology of the Veteran’s lumbar spine disorder. The claims folder, to include a copy of this remand, must be reviewed in conjunction with the examination and opinion. The examiner is asked to elicit from the Veteran a detailed history of the work he did during service, and his low back symptoms in and since service. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater degree of probability) that the Veteran's lumbar spine disorder, to include degenerative arthritis and IVDS, is related to his service. In providing the opinion, the examiner must address the nature of the Veteran’s duties as an Air Freight Specialist, the December 2012 medical record that notes the Veteran’s low back problems had been “life-long,” and the Veteran’s reports that he has had symptoms since service. The examiner must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). Amanda E.H. Gibson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.