Citation Nr: 24034603 Decision Date: 12/23/24 Archive Date: 12/23/24 DOCKET NO. 10-36 746 DATE: December 23, 2024 REMANDED Entitlement to an initial disability rating in excess of 20 percent prior to August 6, 2020, for benign prostatic hypertrophy with urgency and frequency is remanded. Entitlement to an initial disability rating in excess of 40 percent since August 6, 2020, for benign prostatic hypertrophy with urgency and frequency is remanded. REASONS FOR REMAND The Veteran had active service from October 1977 to November 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of a Department of Veterans Affairs (VA) regional office (RO) that granted service connection for benign prostate hypertrophy effective November 2, 2007, and assigned a zero percent disability rating effective that same date. In a May 2010 rating decision, a RO assigned an initial 20 percent disability rating for benign prostatic hypertrophy effective January 29, 2010. In July 2015, the Veteran testified at a videoconference hearing held before a Veterans Law Judge who is no longer in that position. A transcript of that hearing has been associated with the electronic claims file. In November 2015, the Board remanded the claims for further development. In a June 2017 decision, the Board granted an initial 20 percent disability rating from November 2, 2007, to January 28, 2010, for benign prostatic hypertrophy and denied entitlement to an initial disability rating in excess of 20 percent since January 29, 2010, for benign prostatic hypertrophy. The Veteran appealed the June 2017 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In April 2018, the Court issued an order granting an April 2018 joint motion for partial remand. In the joint motion, the parties held that the Board should have discussed whether the epididymitis noted on a September 2014 VA examination is relevant to the Veteran's benign prostatic hypertrophy and, if so, whether the epididymitis warrants either a higher or separate rating. April 2018 joint motion for partial remand, page 7. The parties agreed that the Board must address whether additional medical evidence is needed to determine whether the Veteran's night sweats are related to his benign prostatic hypertrophy. Id. at 7-8. In January 2019, the Board remanded the claim for further development. In an October 2020 rating decision, a RO assigned an initial 40 percent disability rating for benign prostate hypertrophy effective August 6, 2020. In a January 2021 letter, the Board informed the Veteran that the Veterans Law Judge who conducted the hearing in July 2015 is no longer available to participate in his appeal. The Board indicated that he could have another hearing but that if he did not respond within 30 days of this letter, the Board would assume that he did not want another hearing. The Veteran did not reply to that letter. Thus, no further development with regard to a hearing is necessary. In March 2021, the Board remanded the claims for further development. In October 2022, the Board denied entitlement to an initial disability rating in excess of 20 percent prior to August 6, 2020, for benign prostatic hypertrophy and entitlement to an initial disability rating in excess of 40 percent since August 6, 2020, for benign prostatic hypertrophy. The Veteran appealed to the Court. In June 2023, the Court issued an order granting a June 2023 joint motion for partial remand. The parties held that the Board did not provide any discussion as to whether the Veteran's reported improvement with medication merited an increased rating for his benign prostatic hypertrophy. Joint motion, pages 3-4. In March 2024, the Board remanded the claims for further development. The Veteran underwent a VA examination in August 2024, and the VA examiner rendered a retrospective opinion on the severity of the benign prostatic hypertrophy since January 2010. That opinion, however, does not adequately address the relief provided by medications and whether the relief provided by medications is the reason the criteria for a higher rating are not met. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Therefore, an addendum opinion is necessary. A September 2014 VA examiner diagnosed chronic epididymitis. Pursuant to the directives of the April 2018 joint motion for partial remand, the Board in January 2019 remanded the issues for a medical opinion on whether the chronic epididymitis is a symptom of benign prostatic hypertrophy or a secondary disorder caused or aggravated by the benign prostatic hypertrophy. An August 2020 VA examination report reveals that the examiner noted that the Veteran did not have chronic epididymitis. In March 2021, the Board remanded the issues for another medical opinion on the chronic epididymitis found on the September 2014 VA examination is a symptom of benign prostatic hypertrophy or a secondary disorder caused or aggravated by the benign prostatic hypertrophy. While a VA doctor in an April 2021 medical opinion noted that chronic epididymitis or frequent recurrences of epididymitis may be attributed to back pressure from benign prostatic hypertrophy that causes a subsequent bacterial infection, the clinician stated that there was no evidence of chronic or recurrent epididymitis. An August 2024 VA examiner diagnosed chronic epididymitis. An addendum opinion addressing whether the chronic epididymitis noted on both the September 2014 and August 2024 VA examination reports is a symptom of benign prostatic hypertrophy or a secondary disorder caused or aggravated by the benign prostatic hypertrophy is necessary. In September 2023, the Veteran submitted a private treatment record from his pirate urologist, Dr. Anglade, in which the clinician stated in October 2010 that the Veteran was suffering from chronic prostatitis. An addendum opinion addressing whether the Veteran has chronic prostatitis and, if so, whether the chronic prostatitis is a symptom of benign prostatic hypertrophy or a secondary disorder caused or aggravated by the benign prostatic hypertrophy is necessary. At the September 2014 VA examination, the Veteran reported that his primary care doctor increased the dosage of Flomax. The latest records from Abraham Family & Geriatric Medicines were submitted in July 2020. The Veteran submitted some records from Dr. Anglade. Although the Veteran did not authorize the release of any records in response to a March 2024 letter requesting that he authorize the release of such records and instead submitted some records in response, the RO should afford the Veteran another opportunity to authorize the release of all records from Dr. Anglade, any primary care doctor who prescribed medication to treat his prostate disability, and any additional records from Abraham Family & Geriatric Medicines. The RO should also obtain any additional records from the Atlanta VA Medical Center from July 2024 to the present. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his prostate disability, to include all private urologists and primary care providers who prescribed medication to treat his prostate disability. Obtain any identified records. Ask the Veteran to complete a VA Form 21-4142 for Dr. Anglade, any other private urologist, any primary care doctor who prescribed medication to treat his prostate disability, and Abraham Family & Geriatric Medicines. Make two requests for the authorized records from Dr. Anglade, any other private urologist, any primary care doctor who prescribed medication to treat his prostate disability, and Abraham Family & Geriatric Medicines unless it is clear after the first request that a second request would be futile. Obtain the Veteran's VA treatment records from the Atlanta VA Medical Center from July 2024 to the present. 2. After the development in 1 is completed, the RO should arrange for the Veteran's electronic claims file to be reviewed by the August 2024 VA examiner who rendered the opinion in August 2024 for preparation of an addendum opinion to determine the current severity of the benign prostatic hypertrophy. If that clinician is unavailable, arrange for the claims file to be reviewed by an appropriate clinician. The Veteran should only be scheduled for an examination if the clinician deems it necessary. The clinician must opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the chronic epididymitis noted on both the September 2014 and August 2024 VA examination reports is a symptom of benign prostatic hypertrophy. The clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the chronic epididymitis noted on both the September 2014 and August 2024 VA examination reports was (1) caused by or (2) aggravated by the benign prostatic hypertrophy. The clinician must opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has chronic prostatitis. If chronic prostatitis is diagnosed, the clinician must opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the chronic prostatitis is a symptom of benign prostatic hypertrophy. If chronic prostatitis is diagnosed, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the chronic prostatitis was (1) caused by or (2) aggravated by the benign prostatic hypertrophy. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy from being manifested by a daytime voiding interval of less than one hour for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy from being manifested by awakening to void five or more times a night for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy from being manifested by requiring the wearing of an absorbent materials that must be changed two to four times a day for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy from being manifested by requiring the wearing of an absorbent materials that must be changed more than four times a day for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy from being manifested by requiring the use of an appliance for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy from being manifested by urinary retention requiring intermittent or continuous catheterization for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy and any related epididymitis and chronic prostatitis from being manifested by recurrent symptomatic infection requiring drainage for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy and any related epididymitis and chronic prostatitis from being manifested by recurrent symptomatic infection requiring greater than two hospitalizations per year for the period from November 2, 2007, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy and any related epididymitis and chronic prostatitis from being manifested by recurrent symptomatic infection requiring continuous intensive management for the period from November 2, 2007, to August 5, 2020. With consideration of the finding at the September 17, 2014, VA examination that daytime voiding interval was not less than one hour, the Veteran's reporting in June 2020 of increased urinary frequency to a private provider, and the finding at the August 6, 2020, VA examination that daytime voiding interval was less than one hour, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the benign prostatic hypertrophy was manifested by a daytime voiding interval of less than one hour at any time during the period from September 18, 2014, to August 5, 2020. With consideration of the finding at the September 17, 2014, VA examination that nighttime awakening to void was three to four times, the Veteran's reporting in June 2020 of increased urinary frequency to a private provider, and the finding at the August 6, 2020, VA examination that nighttime awakening to void was five or more times, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the benign prostatic hypertrophy was manifested by nighttime awakening to void at a rate of five or more times at any time during the period from September 18, 2014, to August 5, 2020. With consideration of the finding at the September 17, 2014, VA examination that the voiding dysfunction does not cause leakage, the Veteran's reporting in June 2020 of wearing absorbent pads, and the finding at the August 6, 2020, VA examination that voiding dysfunction causes urine leakage requiring absorbent material that must be changed two to four times a day, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) the benign prostatic hypertrophy was manifested by voiding dysfunction causing urine leakage that required absorbent material that must be changed two to four times a day at any time during the period from September 18, 2014, to August 5, 2020. With consideration of the ameliorative effects of the medications used to treat benign prostatic hypertrophy, the clinician should opine on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the relief provided by medications prevented the benign prostatic hypertrophy from being manifested by requiring the use of an appliance for the period from August 6, 2020, to the present. 3. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remain denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cherry, David T. 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.