Citation Nr: 0812006 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-31 554A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of prostate cancer (claimed as a urinary condition), to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and the Appellant's daughter ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran served on active duty with the United States Air Force from October 1950 to November 1953, and from November 1954 to October 1977. Initially, this matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for prostate cancer, also claimed as a urinary condition. A personal hearing was held at the RO before the undersigned Veterans Law Judge in March 2007. When this case was previously before the Board in July 2007, the undersigned Veterans Law Judge granted the veteran's motion for advancement on the docket due to age. Additionally, the Board remanded the claim for a VA examination and medical opinion on the issue of a nexus to service. Unfortunately, all requested development has no been accomplished and, although the Board regrets the further delay, a remand is required. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the July 2007 Remand, the Board noted that service medical records dated in September 1966, October 1966, July 1967, and April 1969 reveal complaints of and treatment for a condition diagnosed as prostatitis. A July 1976 examination on separation from service does not show any prostate problems or complaints. Medical records do establish a 2001 diagnosis of prostate cancer. The Board directed that under McLendon v. Nicholson, 20 Vet. App. 79 (2006), which addressed VA's duty to assist in providing an examination, the evidence of record required VA to afford the veteran an examination and to obtain a medical opinion regarding a relationship between current prostate cancer residuals and his in-service treatment. While the required VA examination was conducted in December 2007, with an addendum following review of the claim file added in January 2008, the medical opinion specifically requested in the Remand was not provided. The Court of Appeals for Veterans Claims has held that "a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by this Court or the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand." Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an additional remand is required to obtain the requested medical opinion. Accordingly, the case is REMANDED for the following action: 1. The RO should return the claim to the examiner who performed the December 2007 examination and January 2008 review of the file to obtain a medical opinion as to whether it is at least as likely as not that currently diagnosed prostate cancer and residuals are etiologically related to the veteran's in-service treatment for prostatitis. The claims file should be made available for review in connection with the offering of an opinion. If that examiner is no longer available, an opinion should be obtained from another doctor following review of the claims file. If no opinion can be rendered without resort to mere speculation, the reviewer should so state. A complete rationale is required for all opinions expressed and conclusions reached. 2. The RO should then review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO should then readjudicate the claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. 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 Supp. 2007). _________________________________________________ CHERYL L. MASON 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).