Citation Nr: 21040553 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-39 045A DATE: July 6, 2021 REMANDED Entitlement to service connection for a bilateral foot disability (claimed as bad circulation of the feet), to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for prostate disability, to include enlarged prostate with urinary incontinence, claimed as due to exposure to herbicide agents and/or secondary to service-connected diabetes mellitus, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded REASONS FOR REMAND The Veteran served on active duty from December 1968 to July 1971. VA has conceded his exposure to herbicide agents based on his service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision remanded the claims for additional development. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a bilateral foot disability (claimed as bad circulation of the feet). The Veteran contends that he is unsteady on his feet and has problems walking, see Form 9 (November 2015), and that his feet get very cold during the winter. See Statement In Support of Claim (August 2016). The Board finds that the opinion obtained on remand is inadequate as it is not fully supported by a complete rationale. An adequate medical opinion must be based on an accurate factual premise and consideration of a veteran's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). A November 2019 VA Artery and Vein Conditions examination reflects that there was no diagnosed disease (arterial or venous) of the vascular system. By history, "Veteran believes he has problems with the capillaries in his feet because they feel so cold when exposed to 40 degrees or below weather. States it will take a couple of hours for his feet to warm up and he will feel a pins and needles sensation. Denies any discoloration." See C&P Exam (December 2019). It was noted that the Veteran uses a wheelchair due to history of diabetic peripheral neuropathy but that his complaints do not constitute a disease or disability and are not a reflection of diabetic peripheral neuropathy. The Board finds that the examination report, while finding no objective findings for a disease of the vascular system, does not address the etiology of the Veteran's reported symptoms to include whether they are non-vascular in nature (i.e. neurological, etc.). The medical evidence of record shows that a July 2009 VA examiner noted diminished achilles reflex, lower extremity neuralgia, and tingling/numbness of the arms, hands, legs, or feet. A December 2009 VA examiner noted diabetic peripheral neuropathic symptoms of cold hands and feet. A February 2014 VA examiner opined that the Veteran's diabetes mellitus impacts his ability to work due to "trouble with feet and neuropathy." See VA Examination (February 2014). A February 2014 VA peripheral neuropathy examination showed decreased bilateral foot monofilament testing and decreased lower extremity vibration sensation testing at the interphalangeal (IP) joint of the great toe bilaterally. Although that examination report noted only femoral and sciatic nerve involvement, there was no indication that nerve testing was conducted or why the findings for the feet did not indicate involvement of the nerves of the feet. The November 2019 VA examination report reflects no consideration of relevant medical history and clinical findings. Therefore, to ensure that VA has met its duty to assist, remand is required. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for prostate disability, to include enlarged prostate with urinary incontinence. The Veteran contends that his benign prostatic hypertrophy (BPH) with urinary incontinence is due to exposure to herbicide agents. See Statement In Support of Claim (December 2010). The Veteran's representative contends that the November 2019 VA examination is inadequate as the examiner provided an etiology for the Veteran's voiding dysfunction, a symptom of his BPH, but did not provide an etiology for his BPH. The Veteran's representative also contends that online medical literature cited in his brief supports a causal relationship between BPH and diabetes mellitus, raising the theory of entitlement on a secondary basis as the Veteran is service connected for diabetes mellitus. See Appellate Brief (June 2021). Although VA obtained a November 2019 VA Male Reproductive examination report, it is inadequate to decide the appeal. The November 2019 VA examination reflects a diagnosis of benign prostatic hypertrophy (BPH) with voiding dysfunction. It attributes the Veteran's voiding dysfunction to BPH and indicated that the Veteran's overactive bladder is secondary to his excessive caffeine intake. The associated medical opinion reflects that it is less likely than not that the Veteran's current prostate condition and urinary complaints were incurred in service or are secondary to diabetes mellitus or exposure to herbicide agents. The rationale was that BPH is associated with advancing age and would be considered to be universal in a 70-years old male. The opinion is inadequate for reasons that include the following. First, it does not explain why the Veteran's age is dispositive of the etiology of the claimed condition. Second, i it relied on the absence of BPH on list of disease as presumed associated with herbicide agent exposure when service connection may be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Third, it does not fully address the question of whether herbicide agent exposure caused or resulted in the Veteran's prostate condition. Fourth, it does not address in any meaningful way secondary service-connection to include the question of aggravation. Although the examiner opined that the Veteran's BPH with urinary incontinence is not secondary to diabetes mellitus, the opinion provides no rationale for that opinion and further did not consider the question of aggravation. It is noted that separate findings and rationales must be provided as to causation and aggravation prongs of secondary service connection as they are separate concepts. Atencio v. O'Rourke, 30 Vet. App. 74, 89-91 (2018). Therefore, to ensure that VA has met its duty to assist, remand is required. Stegall, 11 Vet. App. at 271. 2. Entitlement to a TDIU. Consideration of TDIU is deferred pending the outcome of the other matters in this appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (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, the matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2019 to the Present. 2. Schedule the Veteran for a VA examination of his feet by an appropriate clinician(s) to address the claimed bilateral foot disability. All necessary tests and studies should be accomplished (e.g. nerve conduction testing). The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). The clinician must address the following: (a) Provide findings to identify any current disability and diagnoses pertaining to the feet: In so doing, identify all symptoms of disability involving each foot, considering the Veteran's lay and medical history as well as current findings; and identify all diagnoses to account for those symptoms during the appeal period, which began in April 2009. Direct Service Connection (b) Whether the Veteran's has a foot disability (right and/or left) that at least as likely as not (1) began during active service or (2) manifested within one year after service discharge or (3) is related to an in-service injury, event, or disease, to include exposure to herbicide agents. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. NOTE (2): A adequate medical opinion may not rely on the absence of the claimed condition on the regulatory list of diseases enumerated as associated with herbicide agent exposure. Secondary Service Connection (c) Whether the Veteran has a foot disability (right and/or left) that is at least as likely as not (1) proximately due to service-connected diabetes mellitus; or (2) aggravated beyond its natural progression by service-connected diabetes mellitus. Provide a rationale that addresses causation and aggravation as independent concepts. 3. Obtain a medical opinion from an appropriate medical professional to address the nature and etiology of the Veteran's claimed prostate condition, to include BPH with urinary incontinency. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression, and severity of any symptoms consistent with prostate disorder to include BPH. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). Direct Service Connection (a) Whether the Veteran's has a prostate condition including BPH with urinary incontinency that at least as likely as not (1) began during active service or (2) manifested within one year after service discharge or (3) is related to an in-service injury, event, or disease, to include exposure to herbicide agents. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. NOTE (2): A adequate medical opinion may not rely on the absence of the claimed condition on the regulatory list of diseases enumerated as associated with herbicide agent exposure. Secondary Service Connection (b) Whether the Veteran has a prostate condition including BPH with urinary incontinency that is at least as likely as not (1) proximately due to service-connected diabetes mellitus; or (2) aggravated beyond its natural progression by service-connected diabetes mellitus. Provide a rationale that addresses causation and aggravation as independent concepts. NOTE: An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.