Citation Nr: 1607633 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 10-35 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure. 2. Entitlement to service connection for residuals of prostate cancer treatment, to include rectal bleeding, rectal incontinence, colon damage, urinary incontinence, and erectile dysfunction. 3. Entitlement to service connection for precancerous growth on the esophagus, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Jeffrey Bunten, Attorney ATTORNEY FOR THE BOARD Timothy A. Ralls, Associate Counsel INTRODUCTION The Veteran had active military service from June 1956 to February 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2014 when it was remanded for further development. The issue of brain damage of child due to radiation exposure has been raised by the record in a September 2009 statement by the Veteran. In November 2009, the VA sent a notice letter in which they acknowledged receipt of the claim, but to date, the claim 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. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran alleges that his prostate cancer, diagnosed in August 2003, is the result of his exposure to ionizing radiation in service. Prostate cancer is a listed radiogenic diseases under 38 C.F.R. § 3.311(b)(2) and was manifest within the presumptive periods under 38 C.F.R. § 3.311(b)(5)(iv). The Veteran is a confirmed participant of Operation PLUMBBOB, conducted at the Nevada Test Site in 1957. In January 2010, the Defense Threat Reduction Agency (DTRA) provided an estimated maximum radiation dose for the Veteran. Based on that estimate, a February 2010 administrative decision determined that it was unlikely that the Veteran's prostate cancer resulted from radiation exposure in service. The February 2010 rating decision denied service connection for prostate cancer as a result of exposure to ionizing radiation. All three requirements of 38 C.F.R. § 3.311(b) have been met; the Veteran was exposed to ionizing radiation, subsequently developed a radiogenic disease and that disease became manifest within the specified period. However, there is no indication that the claim was referred to the Under Secretary for Benefits for consideration pursuant to 38 C.F.R. § 3.311(c) as required. The administrative decision, dated February 2010, was signed by the same VA rating specialist as the February 2010 rating decision. Thus, claim should be forwarded to the Under Secretary for Benefits for appropriate consideration, in accordance with 38 C.F.R. § 3.311(c). In a March 2009 claim, the Veteran filed claims for entitlement to service connection for prostate cancer and rectal bleeding, rectal incontinence, colon damage, urinary incontinence, and erectile dysfunction due to prostate cancer and prostate cancer treatment. He filed a claim in April 2008 for service connection for precancerous growth on the esophagus. In a February 2010 rating decision, the RO denied service connection for the above mentioned claims. In March 2010, the Veteran's representative filed a timely notice of disagreement to the denial of prostate cancer and prostate cancer residuals. Attached to the notice of disagreement was a statement by the Veteran discussing the decision "denying responsibility" for his prostate cancer and the other health problems listed on his claims. The Board interprets this notice of disagreement to include all the claims denied in the February 2010 rating decision. The RO has issued a Statement of the Case (SOC) with respect to the prostate cancer claim, however, the RO has not issued an SOC with respect to service connection for rectal bleeding, rectal incontinence, colon damage, urinary incontinence, and erectile dysfunction due to prostate cancer and prostate cancer treatment; and entitlement to service connection for a precancerous growth on the esophagus. The Board will remand for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, (1999). As the issues are being returned on remand, all pertinent VA treatment records since April 2013, need to be obtained and considered. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain copies of all VA treatment records concerning the Veteran since April 2013 and associate them with the claims file. 2. Forward the claim to the VA Under Secretary for Benefits for appropriate consideration in accordance with 38 C.F.R. § 3.311(c). 3. Issue an SOC with respect to the claims for entitlement to service connection for rectal bleeding, rectal incontinence, colon damage, urinary incontinence, and erectile dysfunction due to prostate cancer and prostate cancer treatment; and entitlement to service connection for a precancerous growth on the esophagus, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on that issue. Allow the Veteran the requisite period of time for a response. 4. Thereafter, readjudicate the claim of service connection for prostate cancer. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a Supplemental Statement of the Case and provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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 2014). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).