Citation Nr: 1323173 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-36 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for testicular cancer, status post right orchiectomy, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of June 2007. In a decision dated in March 2012, the Board denied the issue of entitlement to service connection for chronic granulomatous lung disease; accordingly, that issue is no longer before the Board. At that time, the remaining issue of service connection for post-operative testicular cancer residuals was remanded for further development. The case has now been returned to the Board. A claim for service connection for hearing loss and tinnitus was received in February 2013, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. 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 regrets that it is again necessary to remand this appeal. Unfortunately, however, the April 2012 VA examination was inadequate, because it failed to address the question of direct service connection, as had been specified in the March 2012 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the Veteran is entitled to substantial compliance with the Board's remand directives). Moreover, additional relevant evidence requested in the Board remand was received at the RO/AMC in October 2012, but no effort was made to seek an addendum or supplemental opinion, which took into consideration the new evidence. As this evidence consisted of medical records concerning the diagnosis of the Veteran's testicular cancer and subsequent surgery, it must be reviewed in connection with an opinion. Accordingly, the case is REMANDED for the following action: 1. Refer the claims file to an appropriate physician for an opinion concerning the etiology of the Veteran's testicular cancer. (A new examination need not be provided unless the physician deems it necessary.) Specifically, an opinion is requested as to whether it is at least as likely as not (i.e., 50 percent for greater probability) that testicular cancer, diagnosed and treated in 1980: a. had it onset in service or within a year thereafter, or b. is otherwise etiologically related to the Veteran's active service or events related thereto, including Agent Orange exposure. (The Veteran was deployed to Vietnam from September 1968 to June 1969; thus exposure to dioxin-containing herbicides, including Agent Orange, is presumed.) The opinion should address all potentially relevant evidence, including the long-standing history of right testicle swelling noted on the September 17, 1980, report of J. Busse, M.D., as well as the pathology report showing the type of cancer (pure seminoma), and the operative record and pathology report of the size of the tumor. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After ensuring that the medical opinion is adequate, and assuring compliance any other notice and development action required by law, the RO/AMC should readjudicate the claim for service connection for testicular cancer, status post right orchiectomy, both on the basis of direct service incurrence and as associated with herbicide exposure. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and afforded an opportunity to respond, before the appeal is returned to the Board. 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). _________________________________________________ MICHAEL A. HERMAN 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).