Citation Nr: 21039991 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-12 300 DATE: July 2, 2021 REMANDED Entitlement to service connection for prostate condition is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from June 1966 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In January 2019 and December 2020, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's December 2020 remand directed the RO to obtain outstanding VA and private treatment records from January 2020 to the present. The Board's remand also instructed the RO to obtain an addendum opinion clarifying the Veteran's current condition and addressing herbicide exposure. An examination and addendum opinion were provided, however, remand is necessary to address deficiencies in the examination and further develop the claim. As such, substantial compliance was not achieved. 1. Entitlement to service connection for prostate condition is remanded. The Veteran contends he is entitled to service connection for prostate condition. The Veteran filed a claim for service connection of "prostate elevated" in December 2015 and the has since been developed as prostate cancer and prostatitis. The Board remanded the claim in December 2021 for clarificaiton of the Veteran's prostate diagnosis. A March 2021 examiner indicated the Veteran had current diagnoses of benign prostatic hyperplasia (BPH), chronic prostatitis, and high-grade prostatic intraepithelial neoplasia. When a claimant files a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board finds it appropriate to expand the claim to include all prostate diagnoses. The Veteran's service treatment records show he complained of groin, lower abdonminal, and testicular pain in 1968 and is noted as having acute left epididymitis at separation. The Veteran filed a claim for service connection of "infection in testicle (left); pus in prostate gland" six months after separation. He was granted service connection for chronic left epididymitis in April 1969. He has also been presumed to have herbicide exposure due to his Vietnam combat service. The Veteran was provided VA examinations in February 2016, January 2020, and March 2021, with an addendum opinion in April 2021, in connection with this claim. The February 2016 examiner conducted a prostate cancer examination, however the Veteran did not file a claim for and did not have a diagnosis of prostate cancer. Rather, he filed a claim related to his elevated prostate-specific antigen (PSA) level. The examiner failed to provide any discussion of the Veteran's working diagnosis of mild prostatitis with elevated PSA and therefore, rendered the opinion inadequate. The January 2020 examiner concluded the Veteran did not have a current diagnosis of prostatitis, contrary to the prior VA examination and private medical evidence of a current diagnosis. The examiner also concluded "Epididymitis is not related to the veteran['s] current prostate condition." However, the examiner did not provide explanation for the conclusion or an opinion on a secondary theory of entitlement to include aggravation. As the opinion was based on an inaccurate assumption of fact and lack of rationale, it is inadequate. The March 2021 examiner found the Veteran's prostatitis is not related to his active duty service, reasoning lack of notation at separation and a diagnosis 47 years following service. This dismisses the Veteran's 1968 report of prostate symptoms and is an improper rationale. A medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and military service exists. Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The April 2021 addendum addressed the issue of herbicide exposure stating, "there is no positive association between exposure to herbicides and prostatitis found in literature." She further explained "prostatitis is an inflammation of the prostate due to a bacterial infection. The prostate is subject to various inflammatory disorders. One of these syndromes is chronic bacterial prostatitis, which is characterized by chronic or recurrent urogenital symptoms in the setting of documented or suspected bacterial infection of the prostate." However, she does not provide further discussion regarding the Veteran's in-service infections, service-connected epididymitis, or opine on his other prostate diagnoses. The Veteran's prostate diagnoses are not subject to presumptive service connection under 38 C.F.R. § 3.309 (e), nevertheless, they are not precluded from establishing service connection due to herbicide agent exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Further, the Board's December 2020 remand instructed the examiner to discuss the facts of the Veteran's case and informed they may not rely on the absence of a presumptive relation as rationale. This directive was not complied with and therefore, a full rationale for each prostate diagnosis and full consideration of herbicide exposure is needed. The Board cannot make a fully-informed decision on the issue of because the cumulative VA opinions fail to provide reasoned medical explanations on the Veteran's prostate diagnoses, particularly with respect to the issue of aggravation and secondary service connection, and herbicide exppsoure. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As the Board is not permitted to base decisions on its own unsubstantiated medical conclusions, the RO must obtaian a medical opinion discussing the Veteran's currently diagnosed prostate conditions and any potential relationship between the Veteran's in-service symptoms, service-connected epididymitis, and herbicide exposure. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, remand is necessary to fully address appropriate theories of entitlement and the Veteran's contensions. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran's condition. 2. Provide the Veteran's claims file to an appropriate clinician for review regarding the nature and etiology of the Veteran's claimed conditions. 3. The examiner should note each diagnosis of prostate disorder and opine as to: (a.) whether it is at least as likely as not (at least a 50 percent likelihood) the disorder is related to the Veteran's military service, to include in-service symptoms and herbicide exposure. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. (b.) whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran's epididymitis proximately caused any of the Veteran's prostate disorders. (c.) whether it is at least as likely as not (at least a 50 percent likelihood) the Veteran's epididymitis aggravated beyond natural progression the Veteran's prostate disorder. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.