Citation Nr: 1315086 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 05-24 511A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a prostate disorder, to include prostate cancer, to include as due to ionizing radiation exposure. 2. Propriety of the decision to sever service connection for a skin disease on the lower abdomen, buttock, and upper thighs. 3. Propriety of the decision to sever service connection for hypothyroidism. REPRESENTATION Appellant (Veteran) represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active military duty from August 1941 to December 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2004 and January 2009 by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). For the sake of clarity, the Board notes that in a June 2007 decision, the Board denied claims of service connection for skin and thyroid disabilities, and remanded a claim for service connection for prostate cancer. The Veteran appealed the denials of service connection to the Court of Appeals for Veterans Claims, which by order dated in January 2008, remanded the claims back to the Board. In May 2008, the Board vacated the June 2007 denials and remanded the claims to the RO for further development. In January 2009, based on the additional development, the RO granted the skin and thyroid claims, thus ending the appeal of those issues, given the full grant of benefits. Meanwhile, the prostate claim remained on appeal. In June 2011, in connection with the Veteran's prostate claim, the RO received an opinion from the Veterans Health Administration based on the Veteran's radiation dose estimate, which indicated that none of the Veteran's claimed disabilities were related to his radiation exposure. Accordingly, the RO proposed to sever service connection for the recently granted skin and thyroid disabilities. That proposal was executed in a May 2012 rating decision. In March 2013, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the claims file. The Board notes that it has reviewed the Veteran's claims file, to include documents of record that have been included in his virtual VA folder. Relevant evidence has been included in the claims file since the most recent May 2012 supplemental statement of the case (SSOC). This evidence has been considered pursuant to the Veteran's March 2013 waiver of initial review by the Agency of Original Jurisdiction. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). 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. 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). REMAND The Board finds remand warranted for two reasons. First, a Statement of the Case (SOC) should be issued to the Veteran regarding the propriety of the May 2012 decision by the RO to sever service connection for uticaria and hypothyroidism. Within one year of that decision, during the Veteran's hearing before the undersigned in March 2013, the Veteran's representative indicated a clear disagreement with the decision, and a desire to appeal. 38 C.F.R. § 20.202. The statements, memorialized on page 10 of the hearing transcript, are therefore construed as a notice of disagreement against the May 2012 decision to sever service connection. The Veteran must be provided a SOC in response and an opportunity to perfect an appeal of the severance. 38 C.F.R. § 19.26; Manlincon v. West, 12 Vet. App. 238 (1999). Second, with regard to the issue of service connection for a prostate disorder, the Board finds remand warranted for additional medical inquiry. The Veteran contends that he incurred a prostate disorder, to include prostate cancer, during service as the result of his exposure to ionizing radiation. Based on a review of the record, the Board finds that the Veteran's claim has been adequately developed under 38 C.F.R. § 3.311, as was requested by the Board in the June 2007 remand. Nevertheless, another remand is warranted so that the Veteran may undergo VA compensation examination, which addresses whether a prostate disorder directly relates to service. 38 C.F.R. § 3.303; see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence shows that the Veteran was exposed to radiation during service, and that he has a current prostate disorder. Moreover, in a March 2005 statement of record, the Veteran's treating VA physician stated that the Veteran's prostate cancer was related to his in-service radiation exposure. Based on this background, a VA compensation examination should be conducted. 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 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. Attempt to obtain and associate with the claims folder VA medical records, dated from August 2009, which pertain to any treatment the Veteran may have received for his claimed disorders. If no such treatment records exist, the claims file should be documented accordingly. 2. Schedule the Veteran for the appropriate VA exam to answer the following question. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. Is it at least as likely as not (50 percent or more probability) that a currently diagnosed prostate disorder, to include prostate cancer, is related to any in-service disease, event, or injury, to include the Veteran's exposure to ionizing radiation during active service. Review of the whole file is requested, but specific attention is invited to the opinion of record dated in March 2005, from the Veteran's treating VA physician, who indicated that prostate cancer related to radiation exposure during service. Please explain the reasons behind any opinions expressed and conclusions reached. The examiner is further 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. 3. Review the medical opinion(s) obtained above to ensure that the remand directives have been accomplished. If the question posed is not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. After all the above development has been completed, readjudicate the claim regarding service connection for a prostate disorder, in light of all of the evidence of record, as well as any evidence added pursuant to this Remand. If the issue remains denied, the Veteran should be provided with a SSOC as to the issue, and afforded a reasonable period of time within which to respond thereto. 5. With regard to the decision to sever service connection for urticaria and hypothyroidism, issue a SOC based on the Veteran's notice of disagreement memorialized in his March 2013 hearing. See transcript, page 10. The Veteran must be provided with information about his rights and responsibilities in perfecting an appeal on this matter and be given an opportunity to respond. 6. Only if the Veteran responds by submitting a timely substantive appeal, return the issues regarding the propriety of severing service connection for uticaria and hypothyroidism to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK 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).