Citation Nr: 1756578	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  11-18 840	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for prostate cancer, to include as due to ionizing radiation.

2.  Entitlement to service connection for urinary incontinence, to include as secondary to prostate cancer and as due to ionizing radiation.


REPRESENTATION

Veteran represented by:	Douglas J. Rosinski, Attorney at Law


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter



ATTORNEY FOR THE BOARD

Dominic Jones, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1951 to November 1954. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran had a Board hearing in February 2014.

These issues were previously before the Board in March 2014.  In its decision, the Board denied the claims.  However, the Veteran appealed these denials.  In a February 2016 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision as to these issues and remanded the claims to the Board.  

The Board notes that the service connection claim for diabetes mellitus was abandoned at the Court level.  In the March 2014 decision, the Board also remanded claims of service connection for hypothyroidism and bilateral cataracts.  These issues have not yet been recertified to the Board and will be addressed in a separate, future decision, if in order.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2).

The appeal is REMANDED to the agency of original jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Prostate Cancer Claim

The Veteran contends that his prostate cancer is the result of exposure to ionizing radiation during his participation in Operation Tumbler-Snapper.  Claims based on exposure to ionizing radiation are governed by 38 C.F.R. § 3.311 (when 38 C.F.R. § 3.309(d) does not apply, as is the case here).  In its February 2016 memorandum decision, the Court acknowledged that claims such as the Veteran's must be submitted to the Under Secretary for Benefits for further consideration.  As such, this claim must be remanded for submission to the Under Secretary for Benefits consistent with the Court's decision.  See 38 C.F.R. § 3.311.

Urinary Incontinence Claim

The Veteran contends that his urinary incontinence is proximately due to his prostate cancer.  The Board finds this claim to be inextricably intertwined with the Veteran's claim for prostate cancer, and thus should be remanded as well.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following actions:

1.  Refer the Veteran's claim of service connection for prostate cancer as due to ionizing radiation to the Under Secretary for Benefits for a medical advisory opinion consistent with 38 C.F.R. § 3.311(c)(2).  

2.  Thereafter, readjudicate the appeal.  If the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran 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 or by the Court of for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112.




_________________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252, only a decision of the Board is appealable to the Court.  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).