Citation Nr: 1736625	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-16 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for benign prostatic enlargement with voiding dysfunction as secondary to diabetes mellitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Cruz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1952 to September 1972.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, CA.

In August 2012, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the claims file.

In November 2016, the Board denied the claim.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), which in June 2017 granted a Joint Motion for Remand (JMR) of the parties (VA Secretary and the Veteran), vacated the Board's decision, and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In the June 2017 JMR, it was determined that the July 2016 VA examination opinion was inadequate because it was conclusory and contained an insufficient rationale.  Specifically, the examiner stated that there was insufficient documentation to confirm that the claimed benign prostatic enlargement was aggravated beyond the natural progression by diabetes.  However, it was not explained what type of documentation was deemed insufficient when it was then determined that the benign prostate enlargement was less likely as not aggravated by diabetes mellitus.  Additionally, unlike with the erectile dysfunction opinion, the examiner did not cite the lack of a known aggravation relationship between diabetes and benign prostate enlargement as the reason a positive nexus opinion could not be offered.

Moreover, while the examiner determined that there was no aggravation, it was also indicated that the baseline level of the disability could not be determined without resort to speculation.  These assessments are in conflict because the baseline level of disability determination is only needed if aggravation is found to be present.

It was noted that the Veteran is not pursuing the other issues previously denied by the Board, including entitlement to service connection for benign prostatic enlargement on a direct basis, as secondary to diabetes on a causation basis, and as secondary to erectile dysfunction on an aggravation or causation basis.  Therefore, the issue in appellate status is narrowly limited to the question of whether the service-connected diabetes mellitus has aggravated the claimed benign prostatic enlargement.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Forward the claims file, including this remand, to the July 2016 medical examiner to provide an addendum medical opinion.  If the July 2016 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinion should be obtained from another appropriately qualified clinician.  The examiner shall indicate in the addendum report that the claims file was reviewed.  The need for another examination is left to the discretion of the medical professional offering the addendum opinion.

The clinician is requested to address the following:

Is at least as likely as not (50 percent or greater probability) that the benign prostatic enlargement with voiding dysfunction has been aggravated (worsened beyond its natural progression) by diabetes mellitus?  If aggravation is found, please estimate the baseline level of disability prior to such aggravation.

A complete rationale should accompany any opinion provided. If the examiner cannot provide any requested opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered.

2. After the above development has been completed, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s