Citation Nr: 1225724	
Decision Date: 07/25/12    Archive Date: 08/03/12

DOCKET NO.  09-44 357	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for an eye disorder, to include as due to asbestos exposure.

2.  Entitlement to service connection for cancer of the right testicle, to include as due to asbestos exposure.

3.  Entitlement to service connection for heart disease, to include carotid artery stenosis and carotid condition of aorta bypass.

4.  Entitlement to service connection for a urinary tract infection.

5.  Entitlement to service connection for a left arm disorder.

6.  Entitlement to service connection for hypertension.

7.  Entitlement to service connection for hypercholesterolemia, claimed as high cholesterol and hyperlipidemia.

8.  Whether entitlement to a spousal aid and attendance benefit is warranted.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from August 1972 to September 1978.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the current appellate claims.

The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2012.  A transcript of this hearing has been associated with the Veteran's VA claims folder.

For the reasons addressed in REMAND portion of the decision below, the Board finds that further development is required with respect to the Veteran's appellate claims other than his claim of service connection for hyperlipidemia.  Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  All reasonable notification and development necessary for the equitable disposition of the issues adjudicated by this decision have been completed.

2.  The objective findings of hyperlipidemia, hypercholesterolemia, and high cholesterol constitute laboratory findings and are not diseases or disabilities for which VA benefits can be granted.


CONCLUSION OF LAW

Service connection is not warranted for hypercholesterolemia, higher cholesterol, and hyperlipidemia.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via letters dated in January and July 2008, both of which were clearly sent prior to the September 2008 rating decision that is the subject of this appeal.  In pertinent part, these letters informed the Veteran of what was necessary to substantiate his current appellate claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. 
§ 3.159(b), as well as the Court's holding in Quartuccio, supra.  Moreover, the Veteran was provided with information regarding disability rating(s) and effective date(s) mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.   See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).   The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.   The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.   See 38 C.F.R. § 3.159(b)(1).)

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding the claim of service connection for hyperlipidemia.  The Veteran's service treatment records are on file, as are various post-service medical records.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the February 2012 Board hearing.  Nothing indicates the Veteran has identified the existence of any relevant evidence that has not been obtained or requested regarding his hyperlipidemia claim.  In this case, the evidence of record confirms the existence of the claimed hyperlipidemia.  For the reasons detailed below, this condition is not considered a disability for which service connection may be established.  Therefore, there is no reasonable possibility that there is any outstanding evidence which would be relevant to the resolution of this case.  

With respect to the aforementioned February 2012 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, the VLJ accurately noted the current appellate claims, and asked questioned to clarify the Veteran's contentions and treatment history.  Although the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's appellate claims, the testimony of the Veteran, to include the questions posed by his accredited representative, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of either hearing.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. 

The Board also notes that no VA medical examination has been accorded to the Veteran regarding this case.  However, for the reasons detailed below the Board finds that the evidence already of record is sufficient to resolve this case, and that no examination is warranted.   

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  




Legal Criteria and Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Board acknowledges that the record confirms the Veteran has hyperlipidemia and high cholesterol.  However, hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, such as hypertriglyceridemia, hypercholesterolemia, and so on."  Dorland's Illustrated Medical Dictionary, 883 (30th ed. 2003).  Moreover, diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and not, in and of themselves, ratable disabilities for VA compensation purposes.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Stating in supplementary information preceding a final rule amending the criteria for evaluating endocrine system disabilities indicates that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory test results, and are not, in and of themselves, disabilities).

In Brammer  v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress had specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (Service connection may not be granted unless a current disability exists).  A "current disability" means a disability shown by competent medical evidence to exist.  Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Chelte v. Brown, 10 Vet. App. 268 (1997).  Here, although the record shows that the Veteran has been diagnosed with hyperlipidemia and hypercholesterolemia, absent proof of a current disability, not just mere laboratory findings, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (Clarifying that the Veteran need only have the claimed disability at the time he files his claim, even if it subsequently resolves before VA adjudicates or decides his claim).  In the absence of a disability or persistent or recurrent symptoms of a disability, a VA examination is not warranted.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hyperlipidemia.  As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal with respect to this claim must be denied.


ORDER

Service connection for hypercholesterolemia, claimed as higher cholesterol, and hyperlipidemia, is denied.



REMAND

Initially, the Board notes that the Veteran contended at his February 2012 hearing that he continued to receive treatment for his claimed disabilities at VA medical facilities.  He also requested that the record be held open for 60 days in order to obtain VA treatment records since September 2009, and nothing indicates such records have been added to the file.  Nevertheless, the Court has held that VA records which are in existence are constructively of record and the failure of the RO or the Board to consider any such pertinent records might constitute clear and unmistakable error, even though such evidence was not actually in the record assembled for appellate review.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  Relevant statutory and regulatory provisions also emphasize the importance of obtaining pertinent VA records as part of the duty to assist.  See 38 U.S.C.A. 
§ 5103A(c)(2); 38 C.F.R. § 3.159(c)(2).  Therefore, a remand is required to obtain such records.  

The Veteran also indicated at his February 2012 hearing that he received treatment for testicular cancer in 1996 from Drs. Meade and Sellander.  Although records were previously requested and obtained from Dr. Sellander in 2008, it does not appear to contain any records from the 1990s as initially requested.  It is not clear whether Dr. Sellander had such records or not, which would indicate another request is necessary.  Moreover, the Veteran testified that the treatment was at a private hospital in Jacksonville, Florida.  Although he could not remember exactly which hospital it was, he thought it was Memorial.  In addition, he indicated treatment at St. Vincent's and/or Baptist Medical Center in the 1990s for his heart disease.  Therefore, a remand is also required to request he provide the necessary authorization/release to obtain the records from these physicians, as well as from Baptist, St. Vincent's, and Jacksonville Memorial Hospital.

The Board further notes that the Veteran has contended he has various disabilities due to in-service asbestos exposure.

For claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases.  This circular, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992).  Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997).  The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information.  See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428   (1993). 

The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc.  High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction.  Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease).  See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. 

In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos.  Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service.  VAOPGCPREC 4-00. 

In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease.  See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988).  Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria.  Ennis v. Brown, 4 Vet. App. 523, 527 (1993).  As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease.  M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997).  An asbestos-related disease can develop from brief exposure to asbestos.  Id. 

M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis).  Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers.  Noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease.  Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. 

In this case, the Veteran's DD Forms 214 reflect his military occupational specialty (MOS) was that of engineer equipment operator, with related civilian occupations of automobile mechanic and operating engineer.  However, his complete service personnel records do not appear to be on file.  Such development is necessary in light of the aforementioned M21-1 provisions, and also requires a remand in this case.

In addition to the foregoing, the Board notes that a review of the Veteran's service treatment records reflect treatment for a right arm injury in March 1977, but there is no indication of any such treatment for the left arm.  There are also no findings indicative of heart problems to include carotid artery stenosis and hypertension, to include on his August 1978 release from active duty examination.  In fact, the first competent medical findings of these disabilities appear to have been years after his separation from service.  Nevertheless, the service treatment records confirm he was treated for a urinary tract infection in April 1975.  He was also treated for urinary problems in May 1978.  Further, the record reflects that he currently has cancer of the right testicle, as well as benign prostatic hypertrophy. 

In view of the reports of asbestos exposure and the documented in-service findings regarding a urinary tract infection and urinary problems, the Board finds that a competent medical examination is warranted in this case with respect to the urinary tract infection and testicular cancer.  See McLendon v. Nicholson, 20 Vet App. 79, 83 (2006).  As no such examination has been accorded to the Veteran, a remand is required in the instant case.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).  

Regarding the Veteran's eye disorder claim, the Board acknowledges that the Veteran's service treatment records reflect he was evaluated for vision problems while on active duty, and that there was no indication of any visual problems at the time of his August 1972 enlistment examination.  He was referred to optometry evaluation in December 1977, and his August 1978 release from active duty examination noted that he had defective distant vision.  However, records dated in August 1978 reflect his eyes problems were due to refraction (i.e., refractive error of the eye). 

Vision loss - a refractive error of the eye - is one of the specific conditions that VA does not grant service connection for, as it is not considered a disability for VA purposes.  See 38 C.F.R. §§ 3.303(c), 4.9.  Such a condition is part of a life-long defect, and is normally a static condition which is incapable of improvement or deterioration.  See VAOGCPREC 67-90 (1990).  Therefore, in order for service connection to be established for an eye condition the record must reflect that it is an acquired disability due to a disease or injury of service.  

In this case, the Veteran's current eye condition is not clear from the evidence of record.  For example, he has reported having rust rings, scarring, and floaters in his eyes.  He has also contended that these are due to a battery explosion in service.  Granted, no such injury is documented in the service treatment records, and the December 1977 records specifically state he had no history of trauma.  Nevertheless, the Board cannot ignore the documented in-service treatment for eye problems.  Therefore, the Board finds that a VA medical examination is also necessary to evaluate the nature and etiology of the Veteran's claimed eye disorder.  See McLendon, supra; Colvin, supra.

Since the Board has determined that medical examinations are necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations.  The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations.  That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken.  At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

Regarding the claim of entitlement to spousal aid and attendance, the Board notes that under 38 C.F.R. § 3.351(a)(2) , special monthly compensation is payable to a veteran by reason of the veteran's spouse being in need of aid and attendance.  The authority for section 3.351(a)(2) is 38 U.S.C.A. § 1115(1)(E), which provides, in pertinent part, that any veteran entitled to compensation at the rates provided in section 1114 (38 U.S.C.A. § 1114 ) and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents in certain specified amounts, including for a spouse who is a patient in a nursing home or who is blind, or so nearly blind or significantly disabled as to need or require the regular attendance of another person. In order to be entitled to compensation under section 1114, the Veteran must have a service-connected disability.  See generally, 38 U.S.C.A. § 1114 .

As the criteria for spousal aid and attendance includes a veteran having a service-connected disability rated at not less than 30 percent disabling, the Board observes that resolution of the service connection claims may affect this issue for the Veteran in this case.  Thus, these issues are inextricably intertwined.  Therefore, the Board will defer adjudication of the spousal aid and attendance claim until these service connection claims have been resolved.

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should make an attempt to secure the Veteran's complete service personnel records through official channels.

2.  The AMC/RO should obtain the names and addresses of all medical care providers who have treated the Veteran for his eye disorder, left arm disorder, heart disease, hypertension, right testicular cancer and claimed urinary tract infection (to include prostatic hypertrophy) since his discharge from service.  The AMC/RO should also ask that he provide the necessary authorization/release for records from Drs. Meade and Sellander dated in the 1990s, as well as for Baptist, St. Vincent's, and Jacksonville Memorial Hospital for purported treatment in the 1990s.

After securing any necessary release, the AMC/RO should obtain those records not on file.  If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.

3.  Obtain VA treatment records pertaining to the Veteran that date from September 23, 2009.

4.  After steps 1 to 3 are complete, schedule the Veteran for an examination to evaluate the nature and etiology of his right testicular cancer, or residuals thereof, and prostatic hypertrophy.  The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed.  

Following evaluation of the Veteran, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's current right testicular cancer, or residuals thereof, and/or prostatic hypertrophy began in or are otherwise the result of active service, to include his treatment for urinary tract infection in April 1975 and urinary problems in May 1978.  The examiner must also indicate whether the Veteran otherwise has any current residuals as a result of these in-service findings.  

With regard to testicular cancer, the examiner should also opine whether it is at least as likely as not that testicular cancer, or the residuals thereof, is due to claimed asbestos exposure in service.  

A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.

5.  The Veteran should also be afforded a VA medical examination to evaluate the nature and etiology of his claimed eye disorder.  The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed.  

Following evaluation of the Veteran, the examiner must state whether the Veteran has any eye disorder other than refractive error of the eye.  If there is such an acquired eye disorder(s), then the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that such disability began in or is otherwise the result of the Veteran's active service to include his documented in-service treatment for eye problems and claimed exposure to asbestos.  The examiner should assume for the purpose of the opinion that a battery exploded in the Veteran's face as he reports.  

With regard to refractive error, is it at least as likely as not that there was a superimposed injury or disease in service that resulted in additional disability.

A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.

6.  Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the AMC/RO should review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

7.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review.  If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the September 2009 SOC, and provides an opportunity to respond.  

The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

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. 2011).




____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs