Citation Nr: 1332368 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 13-03 123 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation during service. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1944 to September 1946. This matter came before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision of the RO. In June 2013, the Board requested a medical opinion from a health care professional in the Veterans Health Administration (VHA) regarding the etiology of the claimed prostate cancer. The Board determined that such an opinion was necessary to address the medical questions raised by the case. 38 C.F.R. §20.901(a), (d). The Veteran was notified in June 2013 that the Board intended to seek such an opinion. He was later furnished a copy of the medical opinion in July 2013 and was afforded 60 days for response. The Veteran responded in August 2013 by submitting additional private treatment records and indicating on the medical opinion response form that he requested a remand of his case to the Agency of Original Jurisdiction (AOJ) for review of the newly submitted evidence. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 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). This appeal is being remanded to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In accordance with VA's duty to assist, the Board finds that this matter must be remanded to the RO/Appeals Management Center (AMC) for additional development and review for the reasons set out below. In an Administrative Decision in May 2012, the RO determined that there was no reasonable possibility that the Veteran's prostate cancer resulted from his documented exposure to ionizing radiation in connection with Operation CROSSROADS in 1946 based on its review of the evidence of record. This was based on instructed provided to the RO for expedited handling of claims. The Board acknowledges the Veteran's marked response on the medical opinion request form, received in August 2013, that he would like the AOJ to proceed with an initial review of the new evidence that he submitted in connection with his appeal. The Board also notes that, pursuant to its June 2013 VHA request, a response was received from a Chief of Urology at VA in July 2013. This opinion did not provide a supporting rationale. To the extent that the regulations provide that the Veteran's case will be referred to the Under Secretary for Benefits to determine whether it is at least as likely as not that his prostate cancer resulted from exposure to radiation in service, the Board finds that this must be accomplished prior to further appellate review. 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. In accordance with the applicable regulations, the RO should refer the Veteran's claim of service connection for prostate cancer for appropriate consideration as described the provisions of 38 C.F.R. § 3.311 (c). 2. After completing any indicated development, the RO should undertake to readjudicate the Veteran's claim remaining on appeal in light of all the evidence of record. Such readjudication should include the evidence submitted by the Veteran in August 2013 in response to the VHA opinion, the Virtual VA treatment records that have been associated with the electronic file since June 2013, and any opinion provided in accordance with the development requested hereinabove. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. 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 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). _________________________________________________ STEPHEN L. WILKINS 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) (2013).