Citation Nr: 1427980 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 09-33 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to February 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Virtual VA paperless claims processing system includes a transcript of the Veteran's April 2014 hearing before the undersigned Veterans Law Judge. The Veterans Benefit Management System does not currently include any documents pertinent to the present appeal. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In October 2010, the RO found a newly received May 1, 2009, Memorandum for the Record from the U.S. Army & Joint Services Records Research Center (JSRRC) to be not pertinent to the Veteran's claim and therefore found that it need not issue a Supplemental Statement of the Case in this matter. However, upon review, it appears that the document is relevant. In particular, the memorandum indicates that, after review of military documents, ships histories, deck logs, and other sources of information related to Navy and Coast Guard ships, JSRRC can provide no evidence to support a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam area, with an explanation for this finding. Accordingly, the AOJ should issue a supplemental statement of the case that considers this evidence. The Board also finds that the Veteran's complete service personnel records should be sought in order to determine the circumstances of service and the extent to which he may have been exposed to toxins while cleaning or overhauling ships as claimed during his hearing testimony. See 38 U.S.C.A. § 5103A(a)-(c). The Board also notes that the claims file contain very limited treatment records pertaining to the Veteran's diagnosis and treatment for prostate cancer. Thus, on remand, he should be provided the opportunity to obtain or identify additional VA or private treatment records that may be relevant to his claim. See 38 U.S.C.A. § 5103A(a)-(c). Lastly, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his prostate cancer. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request the Veteran's complete service personnel records from the National Personnel Records Center (NPRC) or any other appropriate location. If the records are unavailable from NPRC, the AOJ should contact the service department and the Veteran for any copies he has in his possession. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for prostate cancer. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records. 3. After completing the preceding development, the Veteran should be afforded a VA examination to determine the nature and etiology of his prostate cancer. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's prostate cancer manifested in service or is otherwise causally or etiologically related to the Veteran's military service. In so doing, he or she should address his allegation that the disorder is related to his exposure to chemicals in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence, to include the May 2009 Memorandum from JSRRC. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 Supp. 2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2013).