Citation Nr: 1646105 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 13-01 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for prostate cancer and/or residuals thereof. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Shouman, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to July 1979 and from December 1990 to June 1991. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for prostate cancer. The Veteran timely appealed that decision. In a March 2015 decision, the Board remanded the Veteran's claim for service connection for prostate cancer and/or residuals thereof to the Agency of Original Jurisdiction (AOJ) for further development and to issue appropriate notice. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Additional development is required before the Board can adjudicate the issue on appeal. On his December 2010 VA Form 21-526, the Veteran indicated that he had prostate cancer beginning in March 2009 and that he sought treatment. Medical records from 2012 and 2013 indicate a history of prostate cancer in 2009 and radical resection of the prostate. Although the Veteran reported and the medical records show a history of prostate cancer and treatment, VA was unable to obtain private records of his cancer treatment because the Veteran did not authorize the release of such medical records. According to his DD Form 214, the Veteran was called to active duty service from February 1991 to May 1991 in support of Operation Desert Shield and Desert Storm. The Veteran asserted in his January 2013 appeal to the Board that he was exposed to extreme environmental hazards in Southwest Asia, including a large explosion and fallout. In his appeal, he also stated that he is one of three servicemembers in his company who developed prostate cancer. The Veteran provided no specific information as to the nature of the environmental hazards or explosion that he was exposed to as a result of his service in the Persian Gulf. However, in a September 2016 post-remand brief, the Veteran's representative contended that the Veteran was exposed to burn pits while serving in Southwest Asia during Operation Desert Shield and Desert Storm from February 1991 to May 1991. Military personnel records are not of record with the Board and should be obtained by the AOJ. The evidence on file is insufficient to grant the Veteran's claim. However, competent evidence of the Veteran's history with prostate cancer, and his contention of exposure to burn pits while serving in Southwest Asia, do suggest a possible relationship such that VA should provide the Veteran with an examination in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, according to his service treatment records, an in-service examiner indicated in April 1987 report of medical history that the Veteran had a varicocele on his right testis. Competent evidence of the Veteran's history with prostate cancer, and this note of a varicocele on his testis, do suggest a possible relationship such that VA should provide the Veteran with an examination in this case. See id. On remand, outstanding VA treatment records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding, pertinent VA treatment records. 2. Obtain and associate with the claims file the Veteran's military personnel records. Any failed search attempts must be documented and a search should continue until it is deemed that no additional documents exist. 3. Request that the Veteran provide authorization for records related to his treatment of prostate cancer and treatment. If the authorization is received, then make reasonable efforts to obtain the records. 4. Thereafter, schedule the Veteran for a VA examination, preferably with an oncologist or urologist, for a prostate examination. The examiner is asked to review the claims file to become familiar with the pertinent medical history. Then, the examiner is to provide an opinion on each of the following: a. Was the Veteran's prostate cancer or any current residuals at least as likely as not related to active service, to include exposure to burn pits while serving in Southwest Asia in 1991? If the Veteran has no current residuals, state such and explain why. Assume for the purposes of this examination that the Veteran was in fact exposed to burn pits while serving in Southwest Asia. Please consider all lay and medical evidence, including the Veteran's January 2013 reports that he was one of three servicemembers in his company to have developed prostate cancer after exposure to environmental hazards in Southwest Asia. b. Was the Veteran's prostate cancer or any current residuals at least as likely as not related to the right testis varicocele noted in his April 1987 service record? If the Veteran has no current residuals, state such and explain why. Assume that the Veteran did in fact have a varicocele on his right testis. Please consider all lay and medical evidence. Provide a clear rationale for any conclusions. If the requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 5. Issue a supplemental statement of the case with consideration to the new evidence of record and return the appeal to the Board if otherwise in order. 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 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). _________________________________________________ Paul Sorisio 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. 38 C.F.R. § 20.1100(b) (2015).