Citation Nr: 1805165 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-52 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for bladder cancer claimed as the result of herbicide agent exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from December 1964 to September 1966. He served in the Republic of Vietnam. The Veteran was awarded both the Air Medal and the Aircraft Crewman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for bladder cancer claimed as the result of herbicide agent exposure. The Veteran appeared at a March 2017 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In July 2017, the Board remanded the claim to the Agency of Original Jurisdiction for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017); 38 U.S.C. § 7107 (a)(2) (2012). REMAND In the July 2017 Remand instructions, the Board requested that the Veteran's records be referred "to an environmental toxicologist for an opinion addressing the Veteran's contentions that his bladder cancer is the result of exposure to herbicide agents, diesel fuel, and diesel exhaust." In August 2017, the Veteran's records were referred to a VA physician's assistant and "environmental hazards registry provider." The VA physician's assistant concluded that "the Veteran's bladder cancer, diagnosed more than 40 years after his time on active duty, is less likely than not (less than 50 percent probability) incurred in or caused by his time on active duty, including exposure to herbicide agents, diesel fuel, or diesel exhaust." The Board observes that notations in the record show that the Pittsburgh VA facility does not have a certified environmental toxicologist. There is no evidence in the record that the Agency of Original Jurisdiction attempted to refer the Veteran's records to a VA environmental toxicologist employed at a VA medical facility other than the Pittsburgh, Pennsylvania, VA Medical Center, or sought to refer the Veteran's records to a non-VA environmental toxicologist due to the unavailability of a VA environmental toxicologist. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that further action is required to comply with the July 2017 Remand instructions. Accordingly, the case is again REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested. 1. Refer the Veteran's records to an environmental toxicologist for an opinion addressing the relationship, if any, between the diagnosed papillary urothelial carcinoma and the Veteran's exposure diesel fuel and diesel exhaust while serving as an aircraft crewman in the Republic of Vietnam and presumed herbicide agent exposure. The examiner must review all pertinent evidence of record, including the Veteran's service personnel file, the post-service treatment records, and the March 2017 hearing transcript. The examiner should provide a rationale for all opinions expressed, including citation to the record or any pertinent information published by the Environmental Protection Agency or National Academy of Sciences. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that diagnosed papillary urothelial carcinoma originated during active service; is etiological related to presumed exposure to herbicide agents while in the Republic of Vietnam; or is otherwise related to any event in service, including the Veteran's exposure to diesel fuel, diesel exhaust, and other chemical and substances while performing his service duties as an aircraft crewman. 2. Then readjudicate the claim on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).