Citation Nr: 1311545 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 11-10 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1955 to February 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge at a January 2012 hearing conducted via videoconference. A transcript of the hearing is of record. Additionally, evidence has been associated with the Veteran's claims folder accompanied by a waiver of local consideration. This waiver is contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. 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 Veteran if further action is required. REMAND The Court has held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the current medical evidence of record documents diagnosis of prostate cancer. See, e.g., a VA treatment record dated October 2010. The Veteran contends that during his period of service aboard the USS Wasp, he fueled aircraft and was exposed to heat from the sun, jet fuel, cleaning solvents, and napalm. See, e.g., the January 2012 Board hearing transcript, pgs. 3-4. The Board observes that the Veteran's service treatment records are absent complaints of or treatment for prostate cancer. However, the Board notes that the Veteran is competent to attest to being exposed to heat, jet fuel, and cleaning solvents. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of this exposure. Moreover, his available personnel records confirm service aboard the USS Wasp. Furthermore, the Veteran contends that his current prostate cancer is related to his military service, specifically from exposure to heat, jet fuel, cleaning solvents, and napalm while serving aboard the USS Wasp. See, e.g., the January 2012 Board hearing transcript, pgs. 3-4. On this evidence, the Board finds that there is evidence of a current disability, an in-service injury, and evidence that the two may be connected. Under the "low threshold" standard of McLendon, an examination to determine if there is a nexus between the Veteran's current prostate cancer and his service is warranted. Further, the Board notes that the Veteran submitted a private treatment record from D. Kelly, M.D., dated July 2010 which indicates that the Veteran underwent radiation therapy for his prostate cancer. However, these records are not associated with the Veteran's claims folder. The Board also notes that a copy of the Veteran's entire service personnel records are not associated with his claims folder. Such should be accomplished on remand in order to obtain any additional information concerning the Veteran's duties in service. 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. Obtain the Veteran's complete service personnel records. 2. Take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. Of particular interest are medical records from D. Kelly, M.D. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. If, after making reasonable efforts to obtain named records, the records are unavailable, notify the Veteran and (a) identify the specific records that VA is unable to obtain; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken by VA with respect to the claim. The Veteran must then be given an opportunity to respond. 3. After the above development is completed, to the extent possible, obtain a VA opinion concerning his claim for service connection for prostate cancer. The claims file must be reviewed by the clinician and it should be indicated in the opinion that such review was accomplished. All testing deemed necessary must be conducted and results reported in detail. The clinician is asked to render an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's prostate cancer is related to his active military service, to include his credible report of in-service exposure to heat from the sun, jet fuel, and cleaning solvents. A complete explanation for the opinion should be provided. The clincian is asked to provide the underlying reasons for any opinion expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ S.S. TOTH 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).