Citation Nr: 21027371 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 12-28 892 DATE: May 5, 2021 REMANDED Entitlement to service connection for a disability of the prostate is remanded. Entitlement to service connection for a urinary disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from May 1965 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2017, when service connection was denied. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court), where the parties filed a Joint Motion for Remand (JMR). In April 2018, the Court granted the JMR, vacating the April 2017Board decision denying service connection and remanding the case for further proceedings. The Board then remanded the case twice, in November 2018 and July 2020; the case has been returned to the Board at this time for further appellate review. 1. Entitlement to service connection for a disability of the prostate is remanded. 2. Entitlement to service connection for a urinary disorder is remanded. In the prior remand, the Board found the two opinions regarding prostate and urinary disabilities that were obtained since the JMR to be inadequate. The Board found that the September 2019 and April 2020 opinions impermissibly dismissed the lay statements in the record based solely on the lack of contemporaneous medical documentation, and that the opinions contravened specific instructions from the Board to provide a nexus opinion regarding herbicide exposure despite the fact that the claimed disorders are not on the presumptive list. In November 2020, the RO obtained a new set of examinations and opinions to correct these identified deficiencies; unfortunately, none of the new opinions are adequate and another remand is necessary. On the examination reports, the VA examiner identified a current diagnosis of pyuria, and noted a history of benign prostatic hyperplasia (BPH), erectile dysfunction (ED), and chronic prostatitis. However, the examiner only provided an opinion regarding the etiology of chronic cystitis, noting that this was the only diagnosis on the day of the examination. First, the Board notes that diagnoses of BPH, ED, chronic prostatitis, and recurrent urinary tract infections (UTIs) have been made repeatedly during the pendency of this claim. The current disability requirement for service connection is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, this opinion is inadequate as it does not address all current diagnoses in the record. Further, the examiner reasoned that the chronic cystitis is not related to the Veteran's active duty service because any prostate or urinary disability during service was acute only, without providing any rationale for why the prostate complaints in the service treatment records were acute rather than chronic. The examiner noted that the service treatment records revealed a history of cystitis but did not provide any explanation for such a diagnosis in service was not related to the current chronic cystitis, aside from noting that the separation examination was negative for any prostate or urinary disorders. The Board also notes the examiner appears to have identified VA treatment records as service treatment records, as the Board is unable to locate a diagnosis of cystitis in the service treatment records. Therefore, this opinion, which provided an inadequate rationale, is also inadequate for being based upon an inaccurate factual premise. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). For these reasons, the November 2020 VA opinions are inadequate and insufficient for the Board to make a determination in this case. A remand is therefore necessary to obtain new opinions that adequately address the evidence of record. The matters are REMANDED for the following action: 1. FORWARD THE CLAIMS FILE TO AN APPROPRIATE CLINICIAN WHO HAS NOT PREVIOUSLY OFFERED AN OPINION IN THIS CASE to determine whether the diagnosis of any current disability of the prostate is related to the Veteran's military service. Following review of the claims file, the examiner should identify all current disabilities of the prostate. In doing so, the examiner is instructed that any disability of the prostate is considered current if it was diagnosed during the pendency of this claim, since approximately May 2009. For EACH disability of the prostate identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service, to include conceded herbicide exposure, REGARDLESS of whether the identified disability appears on the presumptive service connection list. The examiner should specifically address the lay statements in the record, from the Veteran and others, regarding ongoing prostate symptoms since service, and any treatment he sought for these symptoms, regardless of whether those treatment records are available in the record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. FORWARD THE CLAIMS FILE TO AN APPROPRIATE CLINICIAN WHO HAS NOT PREVIOUSLY OFFERED AN OPINION IN THIS CASE to determine whether the diagnosis of any current urinary disorder is related to the Veteran's military service. Following review of the claims file, the examiner should identify all current urinary disorders. In doing so, the examiner is instructed that any urinary disorder is considered current if it was diagnosed during the pendency of this claim, since approximately May 2009. For EACH urinary disorder identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran's active service, to include conceded herbicide exposure, REGARDLESS of whether the identified disability appears on the presumptive service connection list. The examiner should specifically address the lay statements in the record, from the Veteran and others, regarding ongoing urinary symptoms since service, and any treatment he sought for these symptoms, regardless of whether those treatment records are available in the record. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided L.M. YASUI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.