Citation Nr: 0810238 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 01-09 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for adenocarcinoma of the prostate, to include as secondary to retained metallic shrapnel of the left aspect of the prostate gland. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from November 1943 to December 1945. This matter was most recently before the Board of Veterans' Appeals (Board) in October 2005, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, through the VA's Appeals Management Center (AMC) in Washington, DC. The primary purpose of such remand was to obtain further medical input as to the relationship between the veteran's prostate cancer and his service-connected retained metallic shrapnel in his prostate gland. Following the AMC's attempts to complete the requested actions, the case has been returned to the Board for further review. This appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required on his part. REMAND Following a review of the record, the Board finds that further medical input from the VA physician who evaluated the veteran in February 2006 and provided an October 2006 addendum to a February 2006 opinion is necessary. This physician provided a response to each of the questions posed by the Board in its October 2005 remand; however, the examiner did not fully address the question of aggravation of the veteran's prostate cancer as a result of the presence of metallic shrapnel in the area of his prostate. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In part, the physician concluded that radiation therapy was not precluded by the presence of the prostate shrapnel, although radiation treatment was as at least as likely as not an increased hazard for post-radiation complication. While the physician concluded that the magnet from magnetic resonance imaging (MRI) would not have aggravated the prostate cancer, the question originally posed remains whether the veteran's prostate cancer was worsened by the delay in diagnosis due to the veteran's inability to undergo an MRI study. A return of the file to the examining VA physician for an addendum addressing this question is warranted. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (service connection may be granted for the amount of increase in an otherwise nonservice connected disorder which was caused by aggravation from a service-connected disorder, which includes treatment or failure to treat the nonservice-connected disability at issue (here prostate cancer), to include a delay in diagnosis caused by an inability to undergo a particular diagnostic study because of the service-connected disability in question (here retained metallic shrapnel in the prostate gland.) The Board further notes that it appears that one or more VA treatment records which were not previously reviewed by the RO or AMC was added to the claims folder since entry of the most recent supplemental statement of the case (SSOC) in November 2007. As such, issuance of an SSOC is required by 38 C.F.R. § 19.31 (2007). Notice is also taken that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995), regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. Review of the record following its return from remand indicates that such regulatory change has not been considered to date by the RO/AMC. See 71 Fed. Reg. 52744 (2006). As this appeal must be remanded for the development noted above, the veteran should be furnished with appropriate notice of this amendment to 38 C.F.R. § 3.310. Accordingly, the case is REMANDED for the following actions: 1. Consistent with the provisions of 38 U.S.C.A. §§ 5100, 5103 (West 2002) and 38 C.F.R. § 3.159 (2007), the veteran must be notified of what information and evidence are still needed to substantiate his claims for direct and secondary service connection for adenocarcinoma of the prostate, to include as secondary to retained metallic shrapnel of the left aspect of the prostate gland, inclusive of the changes to 38 C.F.R. § 3.310, effective from October 10, 2006, 71 Fed. Reg. 52744 (2006). The veteran must be notified by written correspondence of any information and evidence not of record (1) that is necessary to substantiate his claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). The RO or AMC must obtain any relevant VA or other Federal records, such as those compiled by or on behalf of the service department, which are identified. If requested, VA will assist the veteran in obtaining updated records of treatment from private medical professionals or other evidence, provided that he supplies sufficient, identifying information and written authorization. The VCAA notice must also include, pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), an explanation as to the information or evidence needed to establish ratings and effective dates, as outlined by the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Depending upon the veteran's response, any and all assistance due him must then be provided by VA. 2. All pertinent records of VA medical treatment, not already on file, must be obtained for inclusion in the veteran's claims folder. 3. Thereafter, the report of VA a medical examination/ opinion, dated February 11, 2006, with an addendum of October 5, 2006, as prepared by F. J. Swenson, M.D., must be returned to Dr. Swenson for the preparation of an addendum to his earlier reports. If Dr. Swenson is unavailable, or in the event that he wishes to further examine the veteran, the veteran must be accorded an additional VA medical examination for evaluation of the nature and etiology of his adenocarcinoma of the prostate. The veteran's claims file must be furnished to Dr. Swenson or his designee for use in the study of this case. Ultimately, Dr. Swenson or his designee must provide a medical opinion, with full supporting rationale, as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the veteran's adenocarcinoma of the prostate was aggravated by an inability to undertake radiation therapy because of retained metallic shrapnel of the left aspect of the prostate gland? (b) Is it at least as likely as not (50 percent or greater probability) that the veteran's adenocarcinoma of the prostate was aggravated or increased beyond its natural progress due to a delay in diagnosis because of an inability to undergo a MRI study due to the retained metallic shrapnel of the left aspect of the prostate gland? If aggravation is found to have occurred, Dr. Swenson or his designee should indicate, to the extent that is possible, the approximate degree of disability or baseline (e.g., mild, moderate, severe) before the onset of the aggravation. Dr. Swenson or his designee is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. Dr. Swenson or his designee is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If a conclusion cannot be reached without resort to speculation, Dr. Swenson or his designee should so indicate in the examination report. There should also be a notation that the veteran's claims file was reviewed. 4. Lastly, the issue on appeal should readjudicated on the basis of all pertinent evidence, including that added to the record since entry of the SSOC in November 2007, and all governing legal criteria, inclusive of the changes to 38 C.F.R. § 3.310 in December 2006. See 71 Fed. Reg. 52744 (2006). If any benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the AMC/RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional development. No inference should be drawn regarding the final disposition of the claim in question as a result of this action. _________________________________________________ R. F. WILLIAMS 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) (2007).