Citation Nr: 25005753 Decision Date: 04/28/25 Archive Date: 04/28/25 DOCKET NO. 20-00 407A DATE: April 28, 2025 REMANDED Service connection for a urinary disorder, to include excessive urination and nocturia, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1966 to April 1968, including wartime service in the Republic of Vietnam from May 1967 to April 1968. He also served in the Army National Guard from March 1970 to April 1971. This matter is on appeal from a March 2018 rating decision. See Veteran's January 21, 2020, substantive appeal (VA Form 9). In February 2023, and again in December 2024, the Board remanded this matter for further development. Unfortunately, and while the Board regrets the continued delay, remand for compliance with the Board's December 2024 directives is required. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 1. Service connection for a urinary disorder, to include excessive urination and nocturia, is remanded. In its December 2024 remand the Board ordered that the Veteran be afforded a VA examination (preferably by a urology practice clinician) and that such examination include a personal consultation, a physical examination, and "all necessary diagnostic testing, including of the prostate." Whereupon, on December 11, 2024, the RO/VAMC apparently ordered the examination and carefully instructed: Specialist Requested: YES, Urology . . . The Veteran needs to report for all examinations for the following Contention: o a urinary disorder, to include excessive urination and nocturia. ACE process must not be used to complete the DBQ(s). Unfortunately, the scheduling process then appears to have fallen apart, as in a letter to the Veteran dated December 12, 2024, VA's scheduling agent averred: Please note this is a record review only. You will not need to report for an examination. A records-only review was then done and an opinion proffered by a Nurse Practitioner (M.S.B.). See VA "Urinary Tract (Including Bladder and Urethra) Conditions (Excluding Male Reproductive System)" DBQ form that was completed by Nurse M.S.B. on December 20, 2024. Indeed, the ensuing opinion contains the remarks: "A physical exam was not performed as this case was approved for Acceptable Clinical Evidence format." See December 20, 2024, VA Medical Opinion, p. 5. Nurse M.S.B. also provided the following information: During telephone encounter Veteran reported an upcoming appointment on 01/08//2025 with Nephrology regarding this claimed condition. See December 20, 2024, VA Medical Opinion, p. 2. This is what transpired after the Board's December 6, 2024, remand, and there is no indication in these facts the Veteran was at fault in obfuscating or circumventing the Board's unambiguous request for a VA examination. Remand for compliance with the Board's December 2024 remand directives is required. See Stegall, 11 Vet. App. 268, 270-71 (holding that remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order). The claims file should also be updated while on remand to include all VA treatment records dated after September 2018, and any private medical records pertaining to the Veteran's urinary frequency/voiding issues (including records relative to the Nephrology Clinic visit mentioned by Nurse M.S.B.) before the VA examination is done. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (holding that the examiner "must consider the records of prior medical examinations and treatment in order to assure a fully informed examination"). See also 38 C.F.R. § 3.159(c)(1), which provides that VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from private medical care providers; and that such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. This matter is accordingly REMANDED for the following action: 1. Associate all of the Veteran's VA medical records dating from September 2018 with the claims file; especially, all Urology and Nephrology Clinic records. 2. Take appropriate action to obtain any records of treatment by non-VA providers regarding the Veteran's urinary issues; including, but not limited to, all prostate treatment records. 3. After completion of steps 1 and 2, schedule the Veteran for a new VA examination by an appropriate clinician (preferably a urology practice clinician) regarding the issue of service connection for a urinary disorder, claimed as urinary frequency and nocturia. The examiner must review the claim file and note that the claim file was reviewed. The examiner must also (a.) discuss the Veteran's in-service experiences and symptoms with the Veteran and include a synopsis of the Veteran's contentions in the examination report; and (b.) physically examine the Veteran and conduct all necessary diagnostic testing, including of the prostate, and report all findings in detail. The examiner is then asked to respond as follows: (c.) Identify the cause(s) of the Veteran's complained of daytime urinary frequency and nocturia. If there is no diagnosis, the examiner must clearly state that this is the case. (d.) For each diagnosed disorder, opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that said disorder (which is productive of urinary frequency and nocturia) may have begun during the Veteran's active duty service. (e.) If the response to subpart (d) is negative, then opine as to whether, based on review of the file, examination of the Veteran, and the examiner's medical expertise, said disorder may be attributable to some incident of the Veteran's active duty service, such as the Veteran's toxic exposure risk activity (TERA), including the Veteran's exposure to Agent Orange, during his military service. In answering this TERA question, the examiner must consider both the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran during his military service. The clinician must affirm that this was done. A discussion of the facts and medical principles involved will be of considerable assistance to the Board. The examiner is asked to explain why the Veteran's statements make it more or less likely that a current condition actually started during service; or that it relates back to the Veteran's TERA during service. If indicated, it should be explained whether there is a medical reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. After completion of the above directives and any other necessary action, re-adjudicate this claim and issue a Supplemental Statement of the Case if it remains denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Childers, Phyllis 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.