Citation Nr: 1808756 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-31 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to in-service ionizing radiation. 2. Entitlement to a compensable disability rating for bilateral hearing loss. 3. Entitlement to an increased rating for the left knee injury, post-operative status, currently evaluated as 10 percent disabling. 4. Entitlement to a total rating based on individual employability due to the service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1973. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO in Detroit, Michigan, currently has jurisdiction over the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the prostate cancer claim, the record contains a January 2010 medical opinion from Dr. T.S., stating that the Veteran has been treated by the VA Community-Based Outpatient Clinic (CBOC) in Kincheloe, Michigan, for his disorder. Further, the AOJ last associated with the Veteran's claims file records of his treatment at the VA Medical Center (VAMC) in Iron Mountain, Michigan, in January 2010. On remand, efforts should be made to obtain records of these relevant VA treatment records, in order to ensure that his claim is adjudicated on the basis of an evidentiary record that is as complete as possible. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). Regarding the prostate cancer claim, the Veteran asserts that he was exposed to ionizing radiation while stationed at LORAN in Greenland from 1971-1972 during his military service, which caused his prostate cancer. His prostate cancer did not manifest with the presumptive period. However, prostate cancer is a radiogenic disease and the Veteran argues that his prostate cancer resulted from in-service ionizing radiation. Accordingly, 38 C.F.R. § 3.311 (2017) applies. In this regard, the AOJ's actions in determining whether the Veteran was exposed to in-service ionizing radiation are not sufficient to satisfy the requirements listed under 38 C.F.R. § 3.311(a)(2)(iii) (2017). The AOJ only asked for the DD 1141 Form from the U.S. Coast Guard and the National Personnel Records Center (NPRC), and did not submit the claim to the VA Under Secretary for Health for a dose estimate. Thus, further development is necessary upon remand. Regarding the bilateral hearing loss and left knee claims, the Veteran last was afforded VA examinations to determine the severity of these disabilities in August 2010. These examinations are now over seven years old, and the evidence of record suggests a worsening of these disabilities. See January 2014 private doctor statement; October 2013 Form 9. These examinations also did not address recent case law. See Correia v. McDonald, 28 Vet. App. 158 (2016); see also Martinak v. Nicholson, 21 Vet. App. 447 (2007). Finally, in his November 2010 Notice of Disagreement, the Veteran reported a left knee scar. This has not been examined by VA in relation to his service-connected left knee disability. Thus, the Board finds that updated VA examinations are necessary to assess the current severity of the service-connected bilateral hearing loss and left knee disability. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Regarding the TDIU claim, the Veteran is currently unemployed and asserts his unemployment is due to his service-connected disabilities. If, after adjudicating the other matters, the Veteran does not meet the schedular criteria, the issue should be referred to the Director of VA's Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b) (2017). In the November 2017 Informal Hearing Presentation, the Veteran's representative specifically requested this action be accomplished. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of records pertaining to any relevant treatment the Veteran has received at the VA CBOC in Kincheloe, Michigan, and the VAMC in Iron Mountain, Michigan, that have not been associated with the claims file. The evidence obtained, if any, should be associated with the claims file. 2. For the Veteran's prostate cancer claim, the AOJ must follow the steps listed under 38 C.F.R. § 3.311(a)(2)(iii) (2017) to verify if the Veteran was exposed to ionizing radiation while stationed at LORAN in Greenland from 1971-1972. The AOJ must take the following actions: A) Contact the appropriate entity to ask whether the Veteran was exposed to ionizing radiation while stationed at LORAN in Greenland from 1971-1972. B) All relevant records must be forwarded to the VA Under Secretary for Health for a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). C) If the dose assessment shows that the Veteran was exposed to radiation, the case must be referred to the VA Under Secretary for Benefits under 38 C.F.R. § 3.311(c). All records and/or responses received should be associated with the claims file. 3. After the foregoing development has been completed, schedule the Veteran for a VA examination to determine the current state of his service-connected bilateral hearing loss. 4. After the foregoing development has been completed, arrange to have the Veteran scheduled for a VA examination to determine the current severity of the service-connected left knee disability. 5. If the Veteran continues to not meet the criteria for schedular TDIU, submit the question of entitlement to TDIU under 38 C.F.R. § 4.16(b), to the Director of Compensation Service for adjudication. 6. Readjudicate. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).