Citation Nr: 21042199 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-43 108 DATE: July 12, 2021 ORDER Entitlement to service connection for prostate cancer is denied. REMANDED Entitlement to a rating in excess of 30 percent for service-connected cardiomegaly is remanded. Entitlement to service connection for a skin disorder is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's prostate cancer is causally or etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to December 1969 and November 1990 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2017 and January 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. In September 2020, the Board remanded this appeal for further evidentiary development. The Board acknowledges that a portion of the Veteran's service treatment records (STRs) cannot be located and have been determined to be unavailable for review. See February 2009 VA Memorandum and March 2009 Letter to Veteran. Additional requests to obtain these records from the VA Records Management Center were unsuccessful. See August 2016 VA Memorandum. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a claim for service connection. Rather, the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicolson, 19 Vet. App. 215 (2005). Service connection for prostate cancer Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113;38 C.F.R. §§ 3.307, 3.309. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time in the claim process can justify a grant of service connection, even if the disability has since resolved or the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). VA administers the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Veteran contends that he has prostate cancer related to his military service. As an initial matter, the Veteran has been diagnosed with prostate cancer, specifically malignant neoplasm of the prostate status-post prostatectomy. See February 2021 VA Examination. The question for the Board is whether the Veteran's prostate cancer is related to his military service, to include whether such is due to his service in Southwest Asia. The preponderance of the evidence is against a finding that the Veteran's prostate cancer is related to his military service. In the September 2020 remand, the Board directed the agency of original jurisdiction (AOJ) to attempt to obtain outstanding VA and private treatment records and to accord the Veteran a VA examination addressing the nature and etiology of his prostate cancer. The Board notes that the Veteran had reported treatment at the Albuquerque, New Mexico VA Medical Center (MC) in the 1990s and that the earliest treatment records from the Albuquerque VAMC in the claims file were dated in 2003. Also, the Board found that the Veteran's VA treatment records indicated follow-up and outside treatment with private treatment providers and that these records had not yet been obtained. Finally, the Board observed that the Veteran had not yet been accorded a VA examination addressing the nature and etiology of his service connection claim and concluded that such was needed to address whether his prostate cancer is related to his military service. A request was made for older, pre-2003 Albuquerque VAMC records in September 2020, and, in October 2020, a negative response was received indicating that no earlier records were available. Additional private treatment records were associated with the claims file in November 2020 regarding the Veteran's prostate cancer treatment. Finally, a VA examination and opinion was obtained in February 2021, which the Board finds to be adequate and complete in its rendering. (The report of this examination was signed by the examiner in April 2021.) Accordingly, the Board finds there has been substantial compliance with the September 2020 Board remand directives. Stegall, 11 Vet. App. at 271. The February 2021 VA examiner described the Veteran's prostate cancer as malignant neoplasm of the prostate status-post prostatectomy. The examiner recorded the Veteran's history of treatment and current symptoms related to his prostate cancer, which is currently in remission. The examiner reviewed the Veteran's claims folder in addition to conducting an interview with the Veteran. The examiner opined that it was less likely than not that the Veteran's prostate cancer is related to his military service. The examiner explained that, in addition to the gap between the Veteran's separation from service and the diagnosis of prostate cancer, prostate cancer has not been shown in studies to be associated with military service or being present in Southwest Asia. In providing this opinion, the examiner cited to a study regarding the risks and development of prostate cancer as well as another study addressing the occurrence of prostate cancer in various countries around the world and the absence of an increased risk of developing prostate cancer associated with being stationed or present in Southwest Asia. The examiner concluded by acknowledging known risk factors for prostate cancer and concluding that none of these risk factors are related to Veteran's military service and that, as such, the Veteran's prostate cancer was less likely than not incurred in or caused by his military service. The most competent evidence of record does not demonstrate a causal or etiological link between the Veteran's prostate cancer and his military service. The Board assigns significant weight to the February 2021 VA examination and opinion, as the examiner fully addressed the Veteran's claim, including the etiology of his current disability. The examiner included rationale and an explanation for the provided opinion that the Veteran's prostate cancer is less likely than not related to his military service and provided information regarding the risk factors of prostate cancer and cited to academic material in addressing the Veteran's contention that his prostate cancer may be due to his service in Southwest Asia. While the Veteran is competent to report his symptoms and his belief that his current disability is related to his service, he is not competent to provide a nexus opinion in this case. The record does not reflect that he has the requisite training or expertise to offer a medical opinion linking his current disability to his military service, and as such he is not competent to provide an opinion in this case. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board notes the medical evidence is more probative in finding that the Veteran's prostate cancer is not related to his active service, as such was based on an examination of the Veteran and review of the claims file by an examiner with the requisite expertise for making such a determination. The February 2021 VA examination is not contradicted by other competent, credible evidence of record, and the opinion provided therein does not support this service connection claim. In addition, the Board notes that medical evidence of record indicates that the Veteran underwent a robotic radical prostatectomy in 2016, many years after even his second period of service ended in 1991. Thus, the grant of service connection for prostate cancer based on continuity of symptomatology is not warranted. As the preponderance of the evidence if against this service connection claim, it must be denied. In reaching this decision, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Increased rating greater than 30 percent for service-connected cardiomegaly The September 2020 Board decision remanded the Veteran's claim for an increased rating for his service-connected cardiomegaly to obtain outstanding private and VA treatment records and to accord him a new VA examination to assess the current severity of this disability. The Board found that the prior VA heart conditions examination, dated in September 2019, was inconsistent and inadequate and that the Veteran had reported that his heart condition had worsened since that time. As noted above, additional private treatment records were associated with the claims file in November 2020 and it was determined that earlier VA treatment records were not available. See October 2020 Negative Response. In this regard, the Board finds substantial compliance with this portion of the September 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran underwent a new VA examination in February 2021, which was signed by the examiner in April 2021. The examiner diagnosed valvular heart disease, cardiomegaly, and stage I diastolic dysfunction. The examiner did not conduct an exercise stress test and stated that the Veteran's previous exercise stress test reflected his current cardiac function. In conducting an interview-based metabolic equivalents (METs) test, the examiner indicated that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The examiner then indicated that the Veteran's exercise stress test most accurately reflects the Veteran's current cardiac functional level. It is unclear, based on the treatment records and prior VA examinations during the appeal period, what prior exercise test the February 2021 examiner was referenced. The prior VA examination conducted in September 2019 did not include an exercise stress test as it was not required in the Veteran's treatment plan and not without significant risk. Also, the prior examination report included inconsistencies regarding the Veteran's symptoms and did not adequately assess the severity of the Veteran's condition. Furthermore, the Veteran had contended that his service-connected heart condition had worsened, and it is unclear why the examiner did not conduct an updated exercise stress test or conduct further inquiry to assess the Veteran's current symptoms and the impact of such on his cardiac functioning. Because the February 2021 examination report does not appear to have solicited the full picture of the Veteran's symptoms and failed to include updated testing or explain why such was unnecessary, the Board finds the examination to be inadequate for rating purposes. As such, there has not been substantial compliance with the directives of the September 2020 Board remand. Stegall, 11 Vet. App. 268 at 271. A remand is necessary for corrective action, to include obtaining a new examination that adequately addresses the current severity of this disability. Service connection for a skin disorder The September 2020 Board remand directed the AOJ to accord the Veteran a VA examination to determine the nature and etiology of skin disorder. The Board noted that the Veteran reported complaints of rashes and dry skin since service and had most recently been seen for complaints of dermatitis and vitiligo and that no VA examiner had yet addressed whether the Veteran's skin disorder may be related to his military service. A VA examination was obtained in February 2021, although the examination report was not signed until April 2021. The examiner indicated a diagnosis of vitiligo and the Veteran's report of onset of a skin condition shortly after leaving military service. The examiner, in the examination report, copied in summaries from the Veteran's other treatment visits, but did not comment on any of the Veteran's additional skin disorder reports. However, in providing an etiological opinion, the examiner addressed dermatitis and found that the Veteran did not have a diagnosis of dermatitis at that time (and that any prior history of it appears to have resolved). Thus, the examiner concluded that it was less likely than not incurred in, or caused by, the Veteran's military service. It is unclear why, in providing this opinion, the examiner failed to discuss the Veteran's reports of ongoing rashes and dry skin since service or the documented reports of such included on the Veteran's July 1994 Gulf War examination and December 1997 VA examination. In addressing the etiology of the Veteran's vitiligo, the examiner incorrectly stated that the Veteran's medical record does not reveal complaints of a skin condition or disorder until 2016. Indeed, the Veteran's reports of skin troubles and complaints of a skin condition have been consistent and ongoing since the mid-1990s. The examiner went on to state that vitiligo is an autoimmune skin disorder with a clear and specific etiology and diagnosis and that vitiligo is not known to have any association with military service. As such, the examiner opined that it was less likely than not that his vitiligo was related to his military service. The examiner did not specifically address the Veteran's service in Southwest Asia or otherwise address his contentions incidents during his military service that he believes may have contributed to his current skin disorder. The Board finds that the development conducted after the September 2020 remand is inadequate and that, as such, there has not been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The February 2021 VA examiner failed to address the Veteran's contentions of ongoing skin rashes and skin conditions since his service and relied on an incorrect factual premise in providing an opinion addressing the Veteran's vitiligo. Given the inadequacies of the February 2021 examination and opinion, the Board finds that there has not been substantial compliance with the September 2020 Board remand directives and that corrective action is necessary. A remand is necessary to accord the Veteran an opportunity to undergo another VA examination (with an etiological opinion) to determine the nature and etiology of any currently diagnosed skin disability. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cardiomegaly. The Veteran's claims file should be made available to the examiner in conjunction with this examination, and the examiner's review of the folder should be annotated in the examination report. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should provide a full description of this disability and report all signs and symptoms necessary for evaluating this disorder under the rating criteria. If it is not possible to provide an opinion regarding symptoms without 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 particular examiner (does not have the knowledge or training required). The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Also, schedule the Veteran for an appropriate examination to determine the nature, extent, and etiology of any current skin disorder disability, to include dermatitis and vitiligo. The entire claims file must be made available to the examiner for review in conjunction with the examination. The examiner is advised that the Veteran served in Southwest Asia from January 1991 to April 1991. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is asked to: a. Identify/diagnose any skin disability that presently exists or that has existed during the appeal period, to include dermatitis and vitiligo. b. For each such diagnosed skin disorder, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran's military service, to include his service in Southwest Asia or whether such is consistent with his experiences reported therein. c. For skin complaints, or problems, not associated with a diagnosed dermatological disorder, specifically state whether such symptoms are attributable to: (1) an undiagnosed illness; or (2) medically unexplained chronic multisystem illness; or (3) diagnosable chronic multi-symptom illness with a partially explained etiology; or (4) is a disease with a clear and specific etiology and diagnosis. d. Also for any such skin symptomatology not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that such symptoms are due to an undiagnosed illness or medically unexplained chronic multi-symptom illness resulting from service in Southwest Asia during the Gulf War. If so, the examiner should comment on the severity of such symptomatology and report signs and symptoms necessary for evaluating the illness under the rating criteria. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.