Citation Nr: 25004597 Decision Date: 04/03/25 Archive Date: 04/03/25 DOCKET NO. 17-51 431 DATE: April 3, 2025 REMANDED Entitlement to service connection for benign prostate hyperplasia (BPH) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to March 1971, May 1971 to February 1974, March 1974 to December 1975, and January 1977 to March 1992, with additional Reserve and National Guard service, including service in the Republic of Vietnam. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). That August 2014 rating decision, in relevant part, denied entitlement to service connection for prostate problems. Following the August 2014 rating decision, the issue was remanded by the Board in March 2016, May 2019, December 2021, and June 2022. In January 2023, the Board issued a decision denying entitlement to service connection for BPH. Subsequently, the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in October 2023 vacating the Board's January 2023 decision, concluding that the Board erred in failing to provide adequate reasons or bases for its decision, specifically with regard to the adequacy of a July 2022 VA examiner's medical opinion. The case was then returned to the Board for action consistent with the JMR. In February 2024, the Board found the July 2022 VA medical opinion to be inadequate and again remanded this matter, this time to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's BPH, including to specifically opine whether the Veteran's BPH was aggravated by any of his service connected disabilities. New VA medical opinions were obtained in March 2024 and are of record. In October 2024, a Toxic Exposure Risk Activity (TERA) Memorandum was obtained in which it was concluded that the Veteran was exposed to an herbicide agent based on his service in the Republic of Vietnam and that a VA examination/opinion under 38 U.S.C § 1168(a) was warranted. That VA medical opinion was obtained in November 2024 and is also of record. In November 2024, the AOJ issued a Supplemental Statement of the Case (SSOC) continuing the denial of entitlement to service connection for BPH based on the March and November 2024 VA medical opinions, and the appeal was returned to the Board for adjudication. While further delay is regrettable, the Board finds that another remand is necessary, including to comply with the terms of the October 2023 JMR. The Veteran contends his BPH should be service connected because it is related to one or more of his service-connected disabilities. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). In 2023, the Federal Circuit clarified that secondary causation exists when, but for the service-connected disability, the non-service-connected disability was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364. For example, secondary aggravation may be established where the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability. Id. The Veteran is service connected for various disabilities. The March 2024 VA medical opinions each addressed the Veteran's BPH as secondary to the respective service-connected disability. With regard to BPH and secondary causation, the examiner described that while the exact cause of BPH is unknown, its risk factors include obesity, diabetes, metabolic syndrome, family history, age over 50, excessive alcohol consumption, and excessive caffeine consumption. In each case, the examiner found the BPH to be less likely than not secondary to each service-connected condition because, although some of the conditions may present with similar symptoms, each condition involves a completely different entity, because a review of medical literature failed to demonstrate a direct causal relationship between the BPH and the service-connected disability, and because each service-connected condition was not an independent risk factor for BPH. With regard to BPH and secondary aggravation, in each case, the examiner described that there is no evidence to suggest that each respective service-connected disability may aggravate BPH, again indicating that, while the conditions may present with similar symptoms, each condition involves a completely separate entity, and that there is no evidence to suggest that the service-connected disabilities may aggravate BPH. The Board finds these March 2024 VA medical opinions to be inadequate for rating purposes. In particular, the opinions do not comply with the "but for" standard applicable to secondary service connection set forth in Spicer, 61 F.4th at 1365. With regard to TERA, the Board also finds the November 2024 VA medical opinion to be inadequate. This examiner indicated the Veteran's BPH was less likely than not caused by TERA and concluded that no nexus is established, providing as a rationale only that there is no medical or scientific evidence available that identifies a causal relationship between the TERA and BPH, but without citing to any medical evidence considered. These failures to obtain adequate opinions with regard to the Veteran's claim constitute a duty to assist error and remand is therefore warranted to obtain adequate medical opinions (or examination) to address whether the BPH is secondary to any of the Veteran's service-connected disabilities under the Spicer standard and to further explore and address the in-service herbicide agent exposure (TERA). Finally, the Board acknowledges the Veteran's challenge of the competence and qualifications of the examiners who provided the VA medical opinions discussed above because they are "merely PAs" without "particular expertise, experience, training, or competence in commenting on Urologic disorders" and that the VA examinations of record are "wholly inadequate for VA purposes" as a result. See March 2025 Appellant's Post-Remand Brief. However, because the Board has found these medical opinions to be inadequate for the reasons discussed above and is remanding for new opinions (or examination), the Board is not addressing this challenge. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from one or more appropriate clinicians regarding the etiology of the Veteran's benign prostate hyperplasia (BPH). An in-person VA examination need not be scheduled unless deemed necessary by the examiner or otherwise required by the evidence. The complete claims file, to include a copy of this remand, must be made available to and reviewed by the examiner. Thereafter, the examiner must provide a fully articulated medical opinion addressing each of the following: (a.) Whether the Veteran's BPH was caused by the Veteran's service-connected disabilities [addressing each applicable disability in turn]. The Board notes this is a "but for" causation standard (which may be in a direct, etiological way or via multiple steps in a causal chain); therefore, the Veteran's [service connected disability(ies)] need not be the sole or even primary cause(s) of the Veteran's BPH, so long as it/they is/are a necessary cause. In other words, if without the [service connected disability(ies)], the BPH would cease to exist, then the [service connected disability(ies)] is/are "but for" cause(s) of the BPH. (b.) If "no" to (a) above, whether the Veteran's BPH was aggravated (i.e., made worse) by the [service connected disability(ies)]. This aggravation opinion must be separate from the "caused by" opinion in (a) above. The Board notes that the "but for" standard described above applies to aggravation as well, albeit to the degree of disability rather than its existence. Also, secondary aggravation may be established where the natural progression of BPH could have been arrested or improved but for the [service-connected disability(ies)]. (c.) Whether BPH is related to the conceded in-service herbicide agent (Agent Orange) exposure. The examiner is advised that a negative opinion cannot be based solely on the fact that the BPH is not on the list of diseases that are presumptively associated with exposure to herbicide agents. In rendering this opinion, the examiner should consider the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities (TERA) of the Veteran. 2. If, upon completion of the foregoing, the claim remains denied, the matter must be returned to the Board after compliance with appellate procedures. K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bleed, L. 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.