Citation Nr: 22017594 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-47 997 DATE: March 25, 2022 REMANDED Entitlement to service connection for residuals of prostate cancer is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to residuals of prostate cancer, is remanded. REASONS FOR REMAND The Veteran had active military service from October 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2020 decision, the Board denied the service connection claims. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court or CAVC). Through a November 2021 Joint Motion for Remand (JMR), the parties agreed to vacate the December 2020 Board decision and the Court remanded the appeal to the Board. As noted in the January 2021 JMR, the Board failed to ensure VA satisfied the duty to assist when it failed to obtain Veteran's complete private treatment records. See 38 U.S.C. § 5103A, 38 C.F.R. § 3.159(c) (2018). It is well-established that "where the VA is on notice that records supporting an appellant's claim may exist, the VA has a duty to assist the appellant to locate and obtain these records." Solomon v. Brown, 6 Vet. App. 396, 401 (1994); see also 38 C.F.R. § 3.159(c)(1). In this case, the Veteran authorized release of his medical records from Henry Ford Hospital from December 2004 through 2014. See Apr. 2017 VA Form 21-4142a. The Veteran also reported that he has suffered from ED since his surgery to treat prostate cancer. See Apr. 2017 Statement. Thereafter, VA sent one letter to Henry Ford Hospital to attempt to obtain those records. See Apr. 2017 Notification Letter. However, one week later, VA was unable to obtain the records as it found the request to obtain them had expired, and it closed out the request. See Apr. 2017 Report of Contact. The only records from Henry Ford Health System contained in the record are the Veteran's diagnosis of prostate cancer and the positive nexus letter provided by Dr. Peabody. See Dec. 2004 private medical record and Mar. 2017 letter from Dr. Peabody. There are no further letters to Henry Ford Hospital or additional follow-up attempts in the Veteran's file, nor did VA notify Veteran of its inability to obtain these records, as required by 38 C.F.R. §§ 3.159(c)(1), (e)(1), respectively. In addition to not obtaining the complete private treatment records, the Board relied on a VA examination that provided a negative nexus between ED and prostate cancer for lack of medical records showing complaints of ED. See Dec. 2019 VA ED examination. Despite being made aware of outstanding records by the Veteran's authorization and other submissions, the VA did not make any follow-up requests for those records or notify Veteran of its inability to obtain the complete records. See 38 C.F.R. §§ 3.159(c)(1), (e)(1). On remand, the Board must ensure that VA makes adequate attempts to obtain the foregoing complete private treatment records. Additionally, the Board notes that the VA medical opinion is inadequate for adjudication purposes, as it did not address any of the Veteran's risk factors for prostate cancer, as directed in the October 2019 Board Remand, and therefore a Stegall violation has occurred. "[A] remand by . . . the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall, 11 Vet. App. at 271. "[A] remand by . . . the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand." Id. When VA undertakes the effort to examine a veteran, VA is obligated to ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board remanded the claims in October 2019 for a VA examination that opined on whether "the Veteran's prostate cancer stems from contaminants in the water during his service at Camp Lejeune" by considering "any other potential risk factors the Veteran may versus may not have for prostate cancer." Despite this remand order, the December 2019 VA prostate cancer examination's rationale against a positive nexus between the Veteran's Camp Lejeune water exposure and his residuals of prostate cancer was that the residuals were a result of his prostatectomy rather than by service. This rationale does not sufficiently inform the Board on whether the Veteran's prostate cancer itself was related to such exposure and any other potential risk factors he may have. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (holding that medical examination reports are not adequate unless they "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion."). The remaining part of the examiner's rationale merely found that "prostate cancer is not one of the diseases associated with Camp Lejeune" and cited VA's webpage on presumptive conditions. See Dec. 2019 VA examination. However, a condition caused by an in-service exposure can be granted on a direct basis even if the condition is not presumptively associated with the exposure. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (holding that the availability of presumptive service connection for some conditions based on exposures does not preclude direct service connection for other conditions based on exposure); Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994) (stating that presumptive service connection "does not foreclose proof of direct service connection"); see also Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009) ("Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection."). By merely relying on VA's list of presumptive conditions, the VA examiner failed to adequately answer the medical question of direct service connection and failed to address the specific facts of Veteran's case, including the contrary private medical opinion relating to the Veteran's prostate cancer to Camp Lejeune exposure. See Mar. 2017 Dr. Peabody letter; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that, for a medical opinion to be probative, "[t]he Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion") (emphasis added); see also Stefl, 21 Vet. App. at 124 ("a medical opinion . . . must support its conclusions with an analysis the Board can consider and weigh against contrary opinions."). An adequate medical report requires "consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail" so that the Board can make a "'fully-informed'" evaluation. Barr, 21 Vet. App. at 311 (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). As such, the VA examination was inadequate and did not comply with the remand instructions from October 2019. On remand, the RO must obtain a new VA examination that complies with the October 2019 BVA remand instruction and adequately addresses, on a direct basis, whether the Veteran's Camp Lejeune exposure caused or is related to the development of his prostate cancer. See Stegall, supra. Finally, because a decision on the remanded issue of service connection for residuals of prostate cancer could significantly impact a decision on the issue of service connection for erectile dysfunction (ED), to include as secondary to residuals of prostate cancer, the issues are inextricably intertwined. A remand of the claim for service connection for erectile dysfunction (ED), to include as secondary to residuals of prostate cancer, is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Peabody and the Henry Ford Health System, as detailed above. Make two requests for the authorized records from these health care providers, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and etiology of his prostate cancer and any relation to his active service, to include exposure to contaminated water while stationed at Camp Lejeune during his service. The claims file must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. Regarding the Veteran's claim for service connection for prostate cancer, the examiner is asked to provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current prostate cancer had onset in, or is otherwise related to, active service, to include exposure to contaminated water while stationed at Camp Lejeune. b. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's prostate cancer is related to his exposure to contaminated water while stationed at Camp Lejeune during his service. In providing this opinion, the examiner is specifically asked to review and discuss the letter of Dr. Peabody. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant sciences that are applicable in this case which may reasonably explain the medical guidance in the study of this case. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.