Citation Nr: 1328672 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 11-10 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bladder cancer. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during the Vietnam era from November 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Nashville, Tennessee Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for bladder cancer. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that the only pertinent records are VA medical records dated from October 2009 to July 2012 and from April 2011 to October 2012. All other documents are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. The issue of entitlement to service connection for enlarged prostate has been raised by the record in a February 2011 VA Form 9, 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. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Here, a remand is required to obtain medical records, an examination and any relevant disability records. First, VA medical records dated October 2012 show ongoing treatment for bladder cancer and noted that the Veteran was scheduled for a follow-up in December 2012. However, the most recent VA medical records of record are dated October 2012. Additional VA medical records, to include the December 2012 follow-up, must be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Second, VA medical records confirm a diagnosis of bladder cancer and report repeated administration of transurethral resection of bladder tumor and Bacillus Calmette-Guerin treatment. In a November 2012 statement, the Veteran contends that his bladder cancer was likely caused by exposure to Agent Orange since he served in Vietnam and no one is his family has had "any kind of cancer." He also claimed that his doctor "keeps telling me that the whole urinary tract cancers are considered connected to Agent Orange." The Board finds this evidence sufficient to trigger VA's duty to provide an examination. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Finally, in a June 2012 VA examination for posttraumatic stress disorder, the examiner noted that the Veteran's "records indicate that he has been on disability since around 2005 to 2006." However, the Veteran has only been service connected for an anxiety disorder since May 2012. Neither the claims file nor Virtual VA contain any record of other disability benefits. Further clarification of any additional disability records is required, and, if necessary, should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his bladder cancer. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file. In particular, the RO should ask the Veteran to identify and clarify what kind of disability benefits he has been receiving since around 2005 or 2006, and, if appropriate, obtain those records. The RO should also obtain VA medical records beginning after October 2012, to include the December 2012 follow-up, and any subsequent VA medical records. All reasonable attempts should be made to obtain any identified records and to obtain any outstanding VA treatment. If any records cannot be obtained after reasonable efforts have been made, a formal determination that such records do not exist or that further efforts to obtain such records would be futile should be issued and documented in the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing #1 above, schedule the Veteran for a VA examination to determine the nature and etiology of his bladder cancer. The claims file and Virtual VA file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. An explanation for all opinions expressed should be provided. If an opinion cannot be provided without resort to speculation, it should be noted in the examination report, and an explanation provided for that conclusion. After a review of the evidence of record, the examiner should provide an opinion as to whether the diagnosed bladder cancer is at least as likely as not (i.e., a 50/50 chance) causally related to the Veteran's military service, to include as due to his presumed exposure to Agent Orange. In offering any opinion, the examiner should consider the full record, to include service treatment records, medical records, the Veteran's lay statements, and any medical literature appropriate.. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representatives should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ CHERYL L. MASON 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).