Citation Nr: 1336358 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 06-12 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Kathy A. Lieberman, Attorney-at-Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran had active service from January 1962 to January 1966. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for prostate cancer. In July 2010, a hearing was held at the RO before the undersigned; the transcript is of record. In a November 2010 decision, the Board denied entitlement to service connection for prostate cancer. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a February 2013 Joint Motion for Remand (Joint Motion), the Court vacated the Board's decision and remanded the matter for additional development. The appeal is REMANDED to the VA Columbia RO. VA will notify the Veteran if further action is required. REMAND In April 2006, the Veteran requested a medical opinion from a VA physician assistant, W.A.W., pertaining to whether his prostate cancer is due to herbicide exposure during active service. The VA physician assistant notes that the Veteran "was off the coast of [the Republic of Vietnam] and in sight of land," and he was treated for prostate cancer in 2003. The physician assistant stated that there is a positive connection between the two. Per the Joint Motion, it was determined that VA should have sought clarification on the basis of the opinion offered by the VA physician assistant. Thus, remand is necessary to obtain a clarification to the opinion rendered. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file and a copy of this Remand to W.A.W., the VA physician assistant who provided the April 2006 positive opinion. The physician assistant should be asked to clarify the basis for the opinion that there is relationship between his prostate cancer and his active service. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner should be made aware that the Veteran is not presumed to have been exposed to herbicides during active service as he did not have "service in the Republic of Vietnam" for purposes of 38 C.F.R. § 3.307(a)(6)(iii) (2013). In the event, W.A.W. is unavailable to offer clarification to his opinion, the claims file should be forwarded to a VA physician with appropriate expertise to provide an etiological opinion with regard to the Veteran's prostate cancer. The examiner should respond to the following: Is it at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's prostate cancer is due to the Veteran's period of active service, to include his reported herbicide exposure. In formulating this opinion, the examiner should review the April 2006 opinion from the VA physician assistant and attempt to offer an explanation regarding the basis for the opinion stated, with citation to specific finding or study pertaining to a relationship between the Veteran's service offshore of Vietnam and his prostate cancer. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the service treatment records, post-service medical evidence, lay statements and testimony of the Veteran, and treatise evidence submitted by the Veteran. If the foregoing question cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 2. In the interest of avoiding further remand, the RO should review the resulting medical opinion/clarification to ensure that it is responsive to above directive. 3. The RO should then readjudicate the issue of entitlement to service connection for prostate cancer. If the benefit remains denied, the Veteran and his attorney should be provided with an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for further review. The Veteran and his attorney have the right to submit additional evidence and argument on the matter 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. 2013). _________________________________________________ M.W. KREINDLER Acting 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).