Citation Nr: 21025553 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-06 747A DATE: April 28, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for prostate cancer residuals is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to March 1970 and from July 1980 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2018 decision, the Board denied the Veteran’s increased rating claim for prostate cancer residuals. The Veteran appealed this decision to the United States Court of Appeals for Veteran’s Claims (Court). In a January 2020 Memorandum Decision, the Court set aside the Board’s decision and remanded the matter for readjudication. The case was subsequently remanded by the Board for further development in December 2020. Because the Board’s remand instructions have not been complied with, these issues must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance) Entitlement to a disability rating in excess of 10 percent for prostate cancer residuals is remanded. In February 2002, the Veteran was diagnosed with bladder cancer and a radical cystoprostatectomy and orthotopic neobladder was recommended. During surgery, it was discovered that the bladder cancer had spread to a large lymph node at the bifurcation of the iliac vessels and the surgeon performed an ileal loop as opposed to the originally planned full continent urinary diversion. The procedure, which resulted in the removal of the bladder and prostate, was successful. Following the procedure, the Veteran tested positive for prostate cancer and service-connection was established. However, service connection for bladder cancer has not been awarded. The Veteran argues that the decision to divert his urine through an ileal conduit was the result of “a unified treatment” involving the service-connected prostate cancer and nonservice-connected bladder cancer. In reviewing the Board’s decision, the Court found that the Board’s now-vacated June 2018 decision failed to discuss or assess the separate effects of the Veteran’s service-connected prostate cancer and nonservice-connected bladder cancer. Specifically, although the Board repeatedly cited to a VA examiner’s opinion that the Veteran’s voiding dysfunction was the result of his nonservice-connected bladder cancer, and found that this opinion was “competent medical evidence” that was more probative than the Veteran’s lay statements about his symptoms, “the Board never provided its own statement of reasons or bases about the separate effects” of the Veteran’s surgery which treated his service-connected prostate and nonservice-connected bladder cancer. It was noted that the Board may not merely summarize an examiner’s conclusion without discussing why it finds that conclusion persuasive. The Board remanded the Veteran’s claim in December 2020 in order to obtain relevant outstanding medical treatment records and to schedule him for a new examination to determine the current severity of his service-connected prostate cancer residuals. The Board also requested that the examiner: explain whether the removal of the Veteran’s prostate and bladder was part of a “unified procedure;” explain whether the treatment for prostate cancer played a role in the resulting ileal conduct for urinary diversion in 2002, and; explain whether the origins of prostate cancer and bladder cancer residuals are distinguishable. Following the Board’s remand, the RO obtained outstanding VA medical records and sent the Veteran a letter requesting he authorize the release of any pertinent private treatment records. Additionally, the Veteran was afforded a VA prostate cancer examination in January 2021 and medical opinions were obtained the following month. For the reasons set forth below, the Board finds the examination report to be inadequate. In addressing the final question posed by the Board - whether the urinary and renal symptoms are residuals of prostate cancer – the examiner stated that they are not medical related. It was noted that “a thorough review of medical literature failed to demonstrate a causal relationship” and the residual of prostate cancer includes erectile dysfunction only. Although the examiner responded to the question presented, the response does not contain any rationale that the Board can consider and weigh against any contrary reports. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (Holding that a medical opinion is adequate if it “rest[s] on the correct facts and reasoned medical judgment so as [to] inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports.”) The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). For this reason, the case must be remanded for a medical opinion which differentiates between service-connected and non-service-connected pathology and symptomatology, to the extent possible. The matters are REMANDED for the following action: Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion that attempts to distinguish, if possible, the symptomatology which is attributable to the Veteran’s service-connected prostate cancer residuals and that which is attributable to his bladder cancer residuals. If the reviewing clinician cannot distinguish the service-connected prostate cancer residual manifestations from manifestations of any nonservice-connected disability, to include bladder cancer residuals, this should be indicated. A report should be prepared and associated with the Veteran’s VA claims folder. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.