Citation Nr: 1804647 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 09-40 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide or ionizing radiation exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service in the United States Navy from January 1966 to March 1991. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which denied entitlement to the benefits sought. The Veteran appealed the underlying decision in a Notice of Disagreement received in August 2008. This matter was most recently before the Board in March 2014 when it was remanded for additional development. The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that his current prostate cancer disability is due to exposure to Agent Orange while serving in Vietnam during the Vietnam Era or to radiation exposure aboard the USS Enterprise, and in the alternative, directly related to his active service. In this regard, the Board finds that the March 2014 remand directives were not substantially complied with, and the theory of service connection for residuals of prostate cancer directly related to service was not adequately addressed. The issue of entitlement to service connection for residuals of prostate cancer was remanded, in pertinent part, to obtain an opinion as to the etiology of the Veteran's current prostate cancer and residuals. In this regard, while prostate cancer is on the list of diseases associated with herbicide exposure for purposes of awarding presumptive service connection, the AOJ was not able to confirm the Veteran's service in Vietnam. See 38 U.S.C.A. § 1116 (a)(2) (West 2014), 38 C.F.R. § 3.309 (e) (2017). The Board, however, notes that notwithstanding the foregoing, regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017). A medical opinion addressing the etiology of the Veteran's prostate cancer has not been obtained. For this reason, the Board finds that the originating agency failed to substantially comply with the March 2014 remand directives. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the issue is remanded for a VA examination and medical opinion regarding whether any residuals of prostate cancer is related to the Veteran's 25 years of service. 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, development to obtain any outstanding medical records pertinent to the Veteran's claim should be completed. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination by a physician with sufficient expertise to address the etiology of the Veteran's residuals of prostate cancer, to include prostatitis. All pertinent evidence of record must be made available to and reviewed by the VA examiner. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated studies should be performed. Based on the review of the record and the examination results, the examiner should identify all residuals of prostate cancer that have been present during the period of the claim. With respect to each such disorder, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder originated during service or is otherwise etiologically related to the Veteran's service. The supporting rationale for all opinions expressed must be provided. If the physician is unable to provide any required opinion, he or she should explain why the required opinion cannot be provided. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. 3. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. The AOJ should also undertake any other development it determines to be warranted. 5. Then, the AOJ should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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). _________________________________________________ B. MULLINS 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) (2017).