Citation Nr: 1318718 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 08-01 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for prostate cancer, claimed as due to exposure to ionizing radiation. 2. Entitlement to service connection for loss of teeth, claimed as due to exposure to ionizing radiation. 3. Entitlement to service connection for syncopal episodes, claimed as blackouts, claimed as due to exposure to ionizing radiation. 4. Entitlement to service connection for cataracts of the right eye, claimed as due to exposure to ionizing radiation. 5. Entitlement to service connection for left leg tumors, status-post amputation, claimed as due to exposure to ionizing radiation. 6. Entitlement to an initial compensable rating for skin cancer residuals. 7. Whether new and material evidence has been received to reopen the claim of service connection for rheumatoid arthritis and Felty's syndrome. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from November 1945 to October 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2007 and September 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and Seattle, Washington, respectively. The RO in Seattle, Washington currently has original jurisdiction over the Veteran's claims. In March 2013, the Veteran testified at a hearing conducted by the undersigned Veterans Law Judge at the RO in Portland, Oregon. A transcript of the hearing has been associated with the Veteran's VA claims file. The issue of entitlement to service connection for peripheral neuropathy, claimed as due to exposure to ionizing radiation, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issues of entitlement to service connection for loss of teeth, syncopal episodes, cataracts of the right eye, left leg tumors, an initial compensable rating for skin cancer residuals, and whether new and material evidence has been received to reopen the claim of service connection for rheumatoid arthritis and Felty's syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Following the July 2011 supplemental statement of the case, additional VA treatment records were associated with the Veteran's electronic claims file. These documents have not been considered by the RO. Nevertheless, there can be no prejudice to the Veteran in the Board's proceeding to a decision as these records are duplicative of evidence previously considered by the RO. Specifically, these records indicate that the Veteran has a past medical history of prostate cancer, which had been clearly established prior to July 2011. Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board's adjudication at this time. See 38 C.F.R. §§ 3.901, 20.1304 (2012); Bernard v. Brown, 4 Vet.App. 384 (1993). FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation during participation in Operation CROSSROADS in 1946. 2. A radiation dose estimate from the Nuclear Test Personnel Review indicates that the Veteran was exposed to an external gamma dose of 18 rem; an external neutron dose of 2 rem; a total skin dose to any skin area of beta plus gamma radiation of 550 rem; an internal committed alpha radiation dose to the prostate of 4.5 rem; an internal committed dose of gamma plus beta radiation to the prostate of 2 rem; and a committed dose of gamma plus beta radiation to the lens of the eye of 28 rem. 3. Prostate cancer was not manifested during the Veteran's active duty service or for many years after discharge from service, nor is it otherwise related to active duty, including any exposure to ionizing radiation therein. CONCLUSION OF LAW Prostate cancer was not incurred in or aggravated by active service, nor may such be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess, supra. In the present case, VA issued a VCAA notice letter to the Veteran in May 2007, prior to the initial adjudication of his claim. This letter informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence. The May 2007 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the record contains the Veteran's service treatment records, excerpts of his service personnel records, multiple radiation dose estimates, VA and private treatment records, a medical opinion from the VA Chief Public Health and Environmental Hazards Officer and an opinion from the Director of the Compensation and Pension Service. As the Board will discuss in its analysis, the claims file contains a medical opinion from the VA Chief Public Health and Environmental Hazards Officer. This report reflects that the physician reviewed the Veteran's past medical history and rendered an appropriate opinion consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore concludes that the opinion is adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2012). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He exercised the option of a personal hearing and was afforded one in March 2013 as detailed in the Introduction. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issues on appeal, explained the concept of service connection, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claims. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet.App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(b)(i), (ii) (2012). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the Veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5) requires that colon cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2) (2012). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2012). Certain chronic disabilities, to include malignant tumors, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). III. Analysis The Veteran contends that while participating in Operation CROSSROADS he was exposed to ionizing radiation which led to the development of prostate cancer. The Board notes that the Veteran is not alleging that his disability is a result of combat. As a result, the combat presumption is not for application in this case. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). The record indicates that the Veteran has been diagnosed with prostate cancer. See, e.g., a January 2007 private treatment record. He underwent a transurethral recession of the prostate (TURP) and a repeat biopsy revealed that no cancer was present. See a June 2007 VA treatment record. During the hearing, the Veteran complained that he had residuals of his prostate cancer. See the hearing transcript, page 5. (i.) Presumptive service connection - radiation exposure As noted above, in order to establish presumptive service connection under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d), the Veteran must currently have a disease listed in 38 C.F.R. § 3.309(d)(2), and have been a radiation-exposed veteran who participated in a radiation-risk activity as such terms are defined in the regulation. See 38 C.F.R. § 3.309(d)(3) (2012). While the record indicates that the Veteran participated in a radiation-risk activity (Operation CROSSROADS), prostate cancer is not one of the listed diseases under 38 C.F.R. § 3.309(d)(2). Because the presumptive service connection provisions are not applicable to this case, the Board will next examine the claim under 38 C.F.R. § 3.311, which provides for special development in cases involving radiogenic diseases. (ii) Radiogenic diseases under 38 C.F.R. § 3.311 The provisions of 38 C.F.R. § 3.311 provide for development of claims based on a contention of radiation exposure during active service and post-service development of a radiogenic disease. The provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). Section 3.311 essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. The Veteran has been diagnosed with prostate cancer. See, e.g., January 2007 a private treatment record. This is a radiogenic disease as defined by 38 C.F.R. § 3.311. Furthermore, the Veteran was diagnosed with prostate cancer during the prescribed period; five years or more after exposure. See 38 C.F.R. § 3.311(b)(5)(iv) (2012). Based on the presence of a radiogenic disease, a radiation dose estimate was obtained in March 2007. In this assessment, it was determined that, based on the his participation in atmospheric nuclear testing, the Veteran was exposed to no more than an external gamma dose of 18 rem; an external neutron dose of 2 rem; and a total skin dose to any skin area of 550 rem. In March 2009, a second dose estimate was received which indicated that the Veteran received an internal committed dose of alpha radiation to the prostate of 4.5 rem and an internal committed dose of gamma plus beta radiation to the prostate of 2 rem. In a September 2009 memorandum, the VA Chief Public Health and Environmental Hazards Officer, L.D., M.D., observed that the National Institute for Occupational Safety and Health (NIOSH) had developed a program that would estimate the likelihood that exposure to ionizing radiation was responsible for the development of prostate cancer. After entering the Veteran's information, Dr. L.D. noted that that there was, at most, a 28 percent chance that the Veteran's prostate cancer was attributable to his in-service ionization radiation exposure. In a subsequent September 2009 statement, writing for the Director of the Compensation and Pension Service, J.F. referenced the NIOSH program and observed that "for purposes of [this] calculation, the veteran's radiation doses were assumed to have been received as a single acute dose in the earliest year of exposure (1946). This assumption would tend to increase the probability of causation as calculated by [the Interactive Radioepidemiological Program]." It was noted, however, that even if the Veteran's radiation exposure was in the 99th percentile value, the probability that this exposure resulted in his prostate cancer was 28 percent. As a result, it was determined that "there is no reasonable possibility that the [V]eteran's prostate cancer resulted from exposure to radiation in service." Thus, the provisions of 38 C.F.R. § 3.311 have been adhered to. In light of the above-mentioned opinions, service connection based on the procedural advantages of 38 C.F.R. § 3.311 is not warranted. (iii.) Direct service connection - Combee The Board is also obligated to consider service connection without reference to the radiation regulations, 38 C.F.R. §§ 3.309(d), 3.311. The Federal Circuit in Combee determined that the regulations governing presumptive service connection for radiation exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. Accordingly, the Board will proceed to evaluate the Veteran's claim under the regulations governing direct service connection. See Combee, 34 F.3d at 1043-1044; see also 38 C.F.R. § 3.303(d) (2012). As has been discussed above, in order to establish service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden, supra. The evidence indicates that the Veteran has been diagnosed with prostate and colon cancer. A current disability has therefore been demonstrated. Concerning in-service disease, the Veteran's service treatment records do not indicate, and the Veteran does not contend, that he suffered a disease of the prostate during service. In fact, a September 1947 separation examination revealed that his genito-urinary system was normal and a urinalysis was also normal. Therefore, prostate cancer was not manifest, identified, or diagnosed during service. See 38 C.F.R. § 3.303(b). Concerning in-service injury, as is discussed above, the Veteran was exposed to ionizing radiation during service. No specific prostate injuries, as such, were documented during the Veteran's active duty service. Nevertheless, the Veteran's was exposed to ionizing radiation. As noted above, Dr. L.R. determined that the Veteran's prostate cancer was not related to the radiation exposure that he experienced during service. Similarly, the director of VA's Compensation and Pension service determined that there is no reasonable possibility that the Veteran's prostate cancer resulted from exposure to radiation in service. The Board has also considered the Veteran's statements that his prostate cancer is the result of his in-service ionizing radiation exposure. The Board is cognizant that lay evidence may be sufficient to establish a nexus in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran's opinion is lacking in specifics and is therefore accorded less probative value than the opinions described above. The Board also notes that the Veteran has not alleged, and the record does not suggest, that he has experienced continuing prostate symptomatology since service. In fact, the record indicates that the Veteran was diagnosed with prostate cancer following elevated PSA (Prostate-Specific Antigen) tests results. See a January 2007 private treatment record. Specifically, medical records indicate that the Veteran was observed to have an elevated PSA of 8.6 in "late 2000" and a score of 14.6 in 2006. See a December 2006 VA urology treatment record. He testified during the March 2012 hearing that he was diagnosed with prostate cancer in 2006, nearly six decades after his separation from service. See the transcript, page 5. In essence, prostate cancer was not manifest during service or within one year of separation and is not otherwise attributable to service. Rather, the competent evidence establishes that there was a remote post-service onset. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for prostate cancer, as the third Shedden element has not been met. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for prostate cancer, claimed as due to exposure to ionizing radiation, is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the remaining issues must be remanded for further development. In the March 2007 rating decision on appeal, the RO adjudicated the issue of entitlement to service connection for tumors of the right lower extremity. During the March 2013 hearing, however, the Veteran testified that he had intended to file a claim for tumors of the left leg. See the hearing transcript, page 11. Upon review, the record does not indicate that the RO has adjudicated the issue of entitlement to service connection for a left leg disability. See Bernard v. Brown, 4 Vet.App. 384 (1993) Furthermore, during the March 2013 hearing, it was noted that the Veteran recently had his left leg amputated. While the record reflects that the Veteran had a tumor removed from his left leg in August 2000, the claims folder does not contain any treatment records pertaining to his recent amputation. These records must be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). The Veteran has argued that his left leg tumors, loss of teeth, syncopal episodes, and right eye cataracts are the result of his in-service ionizing radiation exposure. See, e.g., the March 2013 hearing transcript. In addition to the left leg tumors noted above, the record indicates that the Veteran has been diagnosed with nucleosclerotic cataracts of the right eye and continuing syncopal episodes. He is also competent to testify as to losing his teeth. While these disabilities are not considered to be radiation related diseases by VA, the Veteran has not been afforded a VA examination to determine if his disabilities may be service-connected without reference to the radiation regulations. See Combee, supra. The Board also observes that following the April 2010 statement of the case, additional VA and private treatment records were associated with the Veteran's claims file. Among these records was a July 2011 VA skin examination. Evidence received after certification of the appeal may be considered by the Board in the first instance if a veteran waives his right to initial consideration by the Agency of Original Jurisdiction. 38 C.F.R. § 20.1304 (2012). The RO did not, however, certify this appeal until November 2012. The evidence in question was received prior to that date. The waiver provision does not apply. See id. The evidence must be considered by the RO in the first instance. See 38 C.F.R. § 19.37 (2012). Finally, the record indicates that the RO confirmed and continued a prior denial of service connection for rheumatoid arthritis and Felty's syndrome in the March 2007 rating decision. While the Veteran initially indicated that he did not wish to appeal this issue, in September 2007, he indicated that he wished to file an appeal as to all issues listed in the March 2007 rating decision. A statement of the case which addresses whether new and material evidence has been received to reopen the claim of service connection for rheumatoid arthritis and Felty's syndrome has yet to be issued by the RO. In Manlincon v. West, 12 Vet.App. 238 (1999), the Court held that where a notice of disagreement is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. 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/AMC should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for the issues remaining on appeal. After securing any necessary authorization for release of information, the RO/AMC should obtain copies of any outstanding records from any identified health care provider. A specific request should be made for any outstanding VA medical records dated since January 2012. All efforts to obtain such records should be documented in the claims folder, and all available records should be associated with the Veteran's VA claims folder. 2. Then, the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's loss of teeth. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should identify the nature of the Veteran's dental disorder(s). For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service. In so doing, he or she should specifically address whether the disorder is related to the Veteran's confirmed in-service ionizing radiation exposure. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. Then, the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's syncopal episodes. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should identify the nature of the Veteran's syncopal disorder. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service. In so doing, he or she should specifically address whether the disorder is related to the Veteran's in-service ionizing radiation exposure. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Then, the Veteran should be afforded a VA examination to determine the nature and etiology of his necleosclerotic cataracts of the right eye. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should identify the nature of the Veteran's eye disorders. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service. In so doing, he or she should specifically address whether the disorder is related to the Veteran's in-service ionizing radiation exposure. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. Then, the RO/AMC should arrange for an appropriate health care provider to review the Veteran's claims file and determine the nature and etiology of his left leg tumors and amputation. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should identify the nature of the Veteran's left leg tumors. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder is related to the Veteran's military service. In so doing, he or she should specifically address whether the disorder is related to the Veteran's in-service ionizing radiation exposure. If the reviewing health care provider finds that physical examination of the Veteran and/or diagnostic testing is necessary, such should be accomplished. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The RO/AMC also should take all indicated action to furnish the Veteran and his representative with a Statement of the Case pertaining to the issue of whether new and material evidence has been received to reopen the claim of service connection for rheumatoid arthritis and Felty's syndrome. This should include providing the Veteran with appropriate notice of his appellate rights. The issue should be returned to the Board only if the Veteran perfects a timely appeal. 7. After completing all indicated development, the RO/AMC then should readjudicate the issues on appeal in light of all the evidence of record (including the records associated with the Veteran's physical and electronic claims file since the November 2007 statement of the case). If the benefits sought on appeal remain denied, the Veteran should be provided with a supplemental statement of the case. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs