Citation Nr: 1303383	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  06-35 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for a prostate disorder, to include prostate cancer, claimed as due to exposure to hydrocarbons, toxic level of lead, and/or herbicide exposure.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Prem, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from August 1955 to August 1957.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded this matter in October 2010 and February 2012 for further development.  

The appeal is once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

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

The Board remanded this issue in February 2012 so that the veteran could undergo a VA examination "by a urologist or other examiner with appropriate expertise for the purpose of determining the nature and etiology of any prostate cancer/ disorder found to be present."  

The Veteran underwent a VA examination in February 2012.  His representative has pointed out that the examiner was not a urologist, but rather was a radiologist with four years experience.  It was contended that the examiner may not have had the expertise necessary to render the requisite opinion.  

In this case, the Board finds no patent lack of compliance with the last remand.  Indeed, the instruction was for an examination by either a urologist or another individual with "appropriate expertise."  There is nothing definitive in the file to indicate that the examiner lacked appropriate expertise.  However, as an examination by a urologist may produce the best evidence with respect to the etiology of the disability in question, and as the Veteran has expressly requested another examination, the Board will accommodate that request under the circumstances of this case.  


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) (2012).  Expedited handling is requested.)

1.  The RO should make sure that the VA records are updated and in the claims folder.   

2.  Schedule the Veteran for a VA examination by a urologist for the purpose of determining the nature and etiology of any prostate cancer/ disorder found to be present.  The claims folder must be made available to and reviewed by the examiner.  The examiner should opine, for all disabilities identified, whether it is at least as likely as not (i.e., probability of 50 percent or greater) that such disability is attributable to the Veteran's active service, to include exposure to hydrocarbons and/or toxic levels of lead. 

Any opinion should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative.

3.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefit sought is 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 case is returned to the Board for further review.

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. 2012).



_________________________________________________
ERIC S. LEBOFF
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) (2012).