Citation Nr: 22040195 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-14 762 DATE: July 13, 2022 REMANDED Entitlement to service connection for bone cancer of the 9th rib and L3 vertebra, to include as secondary to service-connected degenerative disc disease of the lumbar spine, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. Entitlement to service connection for urethral mass, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to January 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA), Veterans Benefit Administration (VBA), Regional Office (RO). The Veteran was afforded a hearing with the undersigned Veterans Law Judge in December 2020. A transcript of the hearing has been associated with the Veteran's file. These matters were previously remanded by the Board in November 2021 in order to provide the Veteran with additional VA examinations and etiological opinions, to include under the provisions of 38 U.S.C. § 1151. As will be explained below, the Board finds a remand is necessary as there has not been substantial compliance with its prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for bone cancer of the 9th rib and L3 vertebra, to include as secondary to service-connected degenerative disc disease of the lumbar spine, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. 2. Entitlement to service connection for urethral mass, or in the alternative, under the provisions of 38 U.S.C. § 1151 for compensation for such disability due to the failure to properly treat residuals of prostate cancer, is remanded. In this post-remand case, the Veteran seeks service connection for bone cancer of the 9th rib and L3 vertebra, to include as secondary to his service-connected back disability, and service connection for urethral mass. In the alternative, the Veteran seeks compensation under 38 U.S.C. § 1151 for failure to properly treat. As noted above, these issues were previously before the Board in November 2021. First, the Board determined a remand was necessary following the Veteran's contention that the VA had not adequate considered the relationship between his service-connected back disability and his nonservice-connected bone cancer. Specifically, the Veteran argued that his back disability was made worse due to inadequate treatment during service and, as a result, his subsequent back disability made the Veteran more susceptible to metastasis of his prostate cancer. Second, the Veteran argues that both his claimed disabilities are the result of VA's failure to properly monitory his nonservice-connected prostate cancer and subsequent residuals. On remand, the RO was directed to 1) provide notice to the Veteran and his attorney an explanation discussing the elements necessary to substantiate claims under 38 U.S.C. § 1151 and secondary service connection, 2) provide the Veteran with a VA examination and obtain etiological opinions regarding direct and secondary service connection, and 3) obtain an opinion regarding entitlement to compensation under 38 U.S.C. § 1151. Pursuant to the remand, in November 2021, the RO provided the Veteran with a "Decision Assessment Document" outlining the elements necessary for secondary service connection but not for elements necessary to substantiate claims asserted under the provisions of 38 U.S.C. § 1151. Next, per the remand directives, the Veteran was provided VA examinations in January 2022 and an opinion was obtained in the same month. However, the Board finds the opinions to be inadequate. The opinions the examiner provided are all conclusory in nature with little to no supporting rationale. A conclusory opinion significantly limits the overall probative value of the opinion. See Horn v. Shinseki, 25 Vet. App. 231, 240-42 (2012) (stating that under caselaw "an unexplained conclusory opinion is entitled to no weight in a service-connection context"). Specifically, when asked to provide the rationale to a negative nexus opinion regarding direct service connection for bone cancer and urethral mass, the examiner provided the singular rationale that he was not diagnosed with either disability until 2016. Furthermore, with regard to a negative aggravation opinion of the Veteran's bone cancer by his service-connected back disability, the examiner simply indicated that prostate cancer metastasis occurs when cells break way from the tumor in the prostate and that cancer cells can travel through the lymphatic system or bloodstream to other areas of the body. However, the specific question posed to the examiner was whether the metastasis of the prostate cancer to the bone progressed beyond its natural progression by his service-connected degenerative disc disease of the lumbar spine. In light of the above, the Board finds that its previous remand directives were not substantially complied with and that an additional remand is necessary. The matters are REMANDED for the following action: 1. The AOJ should send the Veteran and his attorney a notice letter detailing the elements necessary to substantiate a claim under 38 U.S.C. § 1151. 2. Obtain addendum opinions from a different examiner other than the January 2022 examiner. The examiner must review pertinent documents in the clams file in conjunction with this requested action to include the previous opinions, the November 2021 remand, and this remand. The examiner is asked to provide an opinion regarding the nature and etiology of the Veteran's bone cancer: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bone cancer of the 9th rib and L3 vertebra had its onset in service or is otherwise etiologically related to his active-duty service; and/or, b. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bone cancer was caused or aggravated by the severity of the Veteran's service-connected lumbar spine disability. Specifically, whether the metastasis of the Veteran's prostate cancer to the bone progressed beyond its natural progression by his service-connected back disability. The examiner is asked to provide an opinion regarding the nature and etiology of the Veteran's urethral mass: a. Specifically, whether it is at least as likely as not (50 percent probability or greater) that his urethral mass had its onset in service or is otherwise etiologically related to active-duty service; or, 3. Given the additional theory of entitlement to compensation under 38 U.S.C. § 1151, the examiner is additionally asked to provide an opinion as to the following: a. Is it at least as likely as not that the Veteran's bone cancer of the 9th rib and L3 vertebra and/or urethral mass is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in failing to properly monitor the Veteran's prostate cancer and the residuals thereof? b. If the Veteran incurred these disabilities as a result of VA medical care, but such disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the additional disability to be an ordinary risk of the VA treatment received by the Veteran. If the examiner cannot provide the requested opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must readjudicate the issues on appeal. If the benefit is not granted to the fullest extent, the Veteran and his attorney must be furnished with a Supplemental Statement of the Case (SSOC) and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.