Citation Nr: 21042119 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-10 821 DATE: July 12, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. REFERRED A claim for entitlement to a higher rating for left hip strain was filed by the Veteran on an April 2020 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits). In May 2020, the Agency of Original Jurisdiction (AOJ) sent the Veteran a letter which erroneously informed him that this issue was already on appeal, but in fact the prior appeal (which stemmed from a June 2014 notice of disagreement regarding the denial of service connection for a left hip disability in a June 2014 rating decision) was fully resolved with the granting of service connection for left hip strain in an October 2017 rating decision. Therefore, the April 2020 claim for a higher rating for left hip strain is referred to the AOJ for adjudication. REASONS FOR REMAND The Veteran served on active duty from June 2005 to August 2008. In January 2021, a virtual hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 60 days in order to allow for the submission of additional evidence for consideration. The Veteran had also initiated an appeal of the denial of a higher initial rating for posttraumatic stress disorder (PTSD). However, following a December 2017 Statement of the Case (SOC) addressing this issue, the Veteran withdrew his appeal of this issue by way of a December 2017 written submission. Consequently, this matter is not before the Board. Entitlement to service connection for prostate cancer. The Veteran contends that his current prostate cancer is related to his military service, to include as a result of being exposed to burn pits and other toxic chemicals during his service in Afghanistan. The Veteran's service records verify that he had active service in Afghanistan from February 2007 to April 2008 and that he was awarded the Combat Infantryman Badge in June 2007. His service treatment records (STRs) do not note any reports, findings, diagnosis, or treatment of prostate cancer. Post-service, a May 2013 VA treatment record noted an elevated PSA reading for the Veteran, and a December 2013 VA prostate biopsy revealed a diagnosis of prostate cancer for the Veteran at the age of 27. Subsequent VA treatment records dated in 2014 noted that he was receiving private treatment for his prostate cancer from a private urologist (Dr. Sehkon at Woodlands Medical Specialists). On remand, all outstanding treatment records from this private provider should be requested. The Veteran underwent a VA genitourinary examination in May 2014. The record reflects that the VA examiner was provided with two VA Fact Sheets, with one indicating that "VA Considers this Veteran Exposed to Burn Pit Toxins" and the other indicating that "VA Considers this Veteran Exposed to High Levels of Particulate Matter" along with descriptions of these types of in-service exposures. The VA examiner opined that the Veteran's current prostate cancer was less likely than not incurred in or caused by exposure to toxins to which he was exposed while serving in Afghanistan, and was more likely than not related to his family history. For rationale, the VA examiner noted that the Veteran's family history was significant for his father having an elevated PSA (but had never had a prostate biopsy) and a paternal grandfather who died of prostate cancer, and the VA examiner also noted that the American Cancer Society has indicated multiple factors increasing the risk of prostate cancer such as family history, mutations in inherited genes, diet, smoking, prostatitis, workplace exposures to toxic substances, vasectomy, and sexually transmitted disease. Based on this rationale, the VA examiner provided the following conclusion: "It is not possible to determine the precise percentage each risk factor plays in the overall condition of prostate cancer; therefore, I cannot say without resorting to mere speculation." However, in addition to being speculative in nature, there is nothing in the record to indicate that the VA examiner took into account the circumstances of the Veteran's combat service or the two aforementioned VA Fact Sheets pertaining to the Veteran's specific in-service exposures when rendering this opinion. Thereafter, VA treatment records documented that the report of a private MRI of the Veteran's pelvis was scanned into VistA Imaging in April 2018 and April 2019, and that the report of a private urology consultation was scanned into VistA Imaging in May 2019. On remand, viewable copies of these private treatment records must be obtained and associated with the claims file. At his January 2021 Board hearing, the Veteran testified that his only family history of prostate cancer was with his grandfather, and that his brothers, male cousins, and father were all negative for prostate cancer (despite his father having a high PSA). He also provided testimony regarding his toxic exposures while serving in Afghanistan, including from lighting burn pits with JP8 jet fuel, breathing smoke and exhaust from 50-caliber weapons inside his truck while serving as a gunner, and breathing "moon dust" while serving in the dusty environment of Afghanistan. He further testified that he was continuing to receive current urology treatment through the VA and also at Woodlands Medical Specialists. On remand, after all outstanding treatment records have been associated with the claims file, a new examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to the Veteran's current prostate cancer. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his prostate cancer, including from Dr. Sehkon and any other providers at Woodlands Medical Specialists. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from June 2021 to the present, as well as viewable copies of the private treatment records scanned into VistA Imaging (for the private MRI of the Veteran's pelvis in April 2018 and April 2019, and for the private urology consultation in May 2019, as referenced in the VA treatment records outlined above). Any negative search result should be noted in the record and communicated to the Veteran. 3. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician (or a telehealth interview if an in-person examination is not feasible) to determine the nature and etiology of his current prostate cancer. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's prostate cancer began during his active service (or within the first post-service year) or is otherwise related to any incident of his military service, to specifically include his conceded exposure to burn pit toxins and to high levels of particulate matter during his verified service in Afghanistan and his combat participation therein. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matter(s) decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.