Citation Nr: 1337136 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-47 083A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for prostate cancer, to include as secondary to radiation exposure. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to February 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2013, the Board denied the Veteran's claim of service connection for prostate cancer. He filed a timely appeal of the decision to the United States Court of Appeals for Veterans Claims, and pursuant to a Joint Motion for Remand, a July 2013 Order vacated the Board's decision and remanded the matter for action consistent with the terms of the Joint Motion for Remand. 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). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that he is entitled to service connection for prostate cancer due to his exposure to ionizing radiation in service. However, further development is necessary before appellate review may proceed on this issue. The evidence shows that the Veteran was exposed to radiation during his participation in Operation TEAPOT, conducted at the Nevada Test Site in 1955, and that he has prostate cancer. In a June 2008 statement, the Veteran's private physician (urologist) states that the Veteran's prostate cancer "may certainly" have resulted from his exposure to excessive radiation. While such evidence does not appear to meet the standard of proof necessary to establish service connection (see Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical evidence that is speculative, general, or inconclusive cannot be used to support a claim)), the Joint Motion of the parties seems to suggest that it is arguably sufficient to satisfy the "low threshold" standard of 38 C.F.R. § 3.159(c)(4), as to when an examination/medical opinion is necessary (i.e., to clarify the etiology of the Veteran's prostate cancer) for a proper assessment of a direct causation theory of entitlement to the benefit sought. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In keeping with the guidance furnished by the parties in the Joint Motion, additional development is appropriate. 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 Veteran should be scheduled for an appropriate VA examination with an oncologist, if possible (if an oncologist is not available, then with a medical doctor with sufficient expertise with prostate cancer) with regard to his prostate cancer. It is imperative that the claims files be made available to the examiner for review in connection with the examination. After review of the claims files and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's prostate cancer is directly related to his service, to include exposure to ionizing radiation. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data, the radiation dose assessments of record, and medical literature, as appropriate. The explanation must include comment on the June 2008 statement from the Veteran's private urologist in support of his claim. In the event the Veteran fails to appear for the examination, the claims file should nevertheless be forwarded to an appropriate examiner for review and an opinion as requested above. 2. After completion of the above, the RO should review the expanded record and readjudicate the appeal. If the claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has 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 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). _________________________________________________ ALAN S. PEEVY 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).