Citation Nr: 0934852
Decision Date: 09/17/09 Archive Date: 09/23/09
DOCKET NO. 03-12 644 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a previously denied claim of entitlement to service
connection for bilateral hearing loss.
2. Whether new and material evidence has been submitted to
reopen a previously denied claim of entitlement to service
connection for skin tumors to include as secondary to
herbicide exposure.
3. Entitlement to service connection for post-operative
stomach cancer to include as secondary to herbicide exposure.
4. Entitlement to service connection for enlarged prostate,
chronic prostatitis, claimed as prostate cancer.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
A.G. Alderman, Associate Counsel
INTRODUCTION
The Veteran had active service from March 1966 to December
1969, which includes military service in Vietnam.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from October and December 2002 rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia.
The Veteran testified before the undersigned Acting Veterans
Law Judge at a Travel Board hearing in June 2009. A
transcript of this proceeding has been associated with the
claims file.
The issue of enlarged prostate, chronic prostatitis, claimed
as prostate cancer is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The RO denied service connection for bilateral hearing
loss in a June 1986 rating decision; this denial was
confirmed in a July 1988 Board decision. In a June 2000
rating decision the RO again denied service connection for
bilateral hearing loss finding that the Veteran had failed to
submit new and material evidence and properly notified the
Veteran, who did not initiate an appeal of that decision.
2. The July 1988 Board decision and June 2000 rating
decision are the last final decisions prior to the Veteran's
request to reopen his claim for entitlement to service
connection for bilateral hearing loss in July 2001.
3. Evidence received since the June 2000 decision regarding
the Veteran's claim for service connection for bilateral
hearing loss does not bear directly and substantially upon
the specific matter under consideration and is not, by itself
or in connection with evidence previously assembled, so
significant that it must be considered in order to fairly
decide the merits of that claim.
4. The RO denied service connection for skin tumors in a
June 1994 rating decision and properly notified the Veteran,
who did not initiate an appeal of that decision.
5. The June 1994 rating decision is the last final decision
prior to the Veteran's request to reopen his claim for skin
tumors in March 2002.
6. Evidence received since the June 1994 rating decision
regarding the Veteran's claim for service connection for skin
tumors is cumulative of evidence previously of record and
does not raise a reasonable possibility of substantiating the
claim.
7. The Veteran had active military service in the Republic
of Vietnam during the Vietnam era; thus, he is presumed to
have been exposed to herbicides.
8. Stomach cancer has not been recognized by VA as being
etiologically related to exposure to herbicide agents used in
Vietnam.
9. The Veteran does not have a stomach disorder that had its
onset during active duty or that is otherwise related to his
service.
CONCLUSIONS OF LAW
1. The Board decision of July 1988 and the rating decisions
of June 2000 and June 1994 are final. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2008).
2. New and material evidence has not been received, and the
claim seeking entitlement to service connection for bilateral
hearing loss may not be reopened. 38 U.S.C.A. § 5108 (West
2002); 38 C.F.R. § 3.156(a) (2002); Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998).
3. New and material evidence has not been received, and the
claim seeking entitlement to service connection for skin
cancer may not be reopened. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156(a) (2008).
4. Service connection for post-operative stomach cancer is
not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38
C.F.R. §§ 3.303, 3.309(e) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
With regard to the issues decided herein, the Veteran
contends that his bilateral hearing loss, skin tumors, and
post-operative stomach cancer residuals are related to his
service in the United States Navy from March 1966 to December
1969. Specifically, the Veteran contends that he worked on
jets while in the military and was exposed to significant
acoustic trauma. He attributes his current bilateral hearing
loss to this acoustic trauma. The Veteran also contends that
he was exposed to herbicides during his military service
which have led to his current skin tumors and stomach cancer
residuals.
New and Material Evidence
Generally, a claim which has been denied may not thereafter
be reopened and allowed based on the same record. 38
U.S.C.A. § 7105. However, pursuant to 38 C.F.R. § 5108, if
new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of
the claim.
Prior to August 29, 2001, new and material evidence was
defined as evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative or redundant, and which by itself or in connection
with evidence previously assembled is so significant that it
must be considered in order to fairly decide the merits of
the claim. 38 C.F.R. § 3.156(a) (2002); Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998).
After August 29, 2001, new evidence is defined as existing
evidence not previously submitted to agency decision makers.
Material evidence is defined as existing evidence that, by
itself or when considered with previous evidence of record,
relates to an unestablished fact necessary to substantiate
the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a) (2008). In
determining whether evidence is "new and material," the
credibility of the new evidence must be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
Regardless of the RO's determination as to whether new and
material evidence has been submitted, the Board has a
jurisdictional responsibility to determine whether a claim
previously denied by the RO is properly reopened. See
Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing
38 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must
initially determine whether there is new and material
evidence to reopen the claim.
1. Bilateral hearing loss
In a June 1986 rating decision the RO denied the Veteran's
claim for service connection for bilateral hearing loss
because evidence did not show that it had its onset during
active service and was not shown in the VA examination
report. The Veteran appealed and the Board of Veterans
Appeals denied the claim on July 14, 1988. The Board
decision is final. 38 U.S.C.A. § 7105; 38 C.F.R.
§§ 3.160(d), 20.200, 20.302, 20.1103.
The Veteran filed to reopen his claim in April 2000, but the
RO denied his claim by rating decision dated in June 2000 for
lack of new and material evidence showing that his current
hearing loss was related to military service. The Veteran
was notified of the decision and his appellate rights in a
June 2000 letter, but he did not appeal. The RO received the
next communication regarding this claimed disability and
service connection in July 2001, more than one year after the
June 2000 notice letter. Therefore, the June 2000 decision
is final. See 38 U.S.C.A. § 7105(c), 38 C.F.R. § 20.1103.
The Veteran's claim to reopen entitlement to service
connection for bilateral hearing loss was received in July
2001. Thus, the pre-August 29, 2001 regulation regarding new
and material evidence applies, 38 C.F.R. § 3.156(a) (2002);
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
The evidence of record at the time of the July 1988 Board
decision and June 2000 rating decision included the Veteran's
service treatment records, which were negative for hearing
loss and a July 1986 VA examination which showed bilateral
hearing loss several years after military service. Evidence
submitted since the July 1988 Board decision and June 2000
rating decision includes VA outpatient treatment records, lay
statements, and the Veteran's testimony before the
undersigned Acting Veterans Law Judge.
Upon review of the record, the Board finds that some of the
evidence presented since the prior final denials of this
claim in July 1988 and June 2000 is new, in that it was not
previously of record, but it is not material, in that it is
cumulative and redundant. As noted, the basis of denial in
July 1988 was that there was no evidence of bilateral hearing
loss during service and no evidence of bilateral hearing loss
until many years after military service and the basis of
denial in June 2000 was that the Veteran had failed to submit
new and material evidence. Since the July 1988 and June 2000
decisions the Veteran has submitted current VA outpatient
treatment reports which show bilateral hearing loss and has
provided written and oral testimony regarding his claim but
has not submitted any evidence linking his current bilateral
hearing loss to his military service. Such evidence is
cumulative of evidence previously of record and therefore not
new and material. 38 C.F.R. §3.156(a) (2002).
The Board concludes that new and material evidence has not
been received, and that the criteria for reopening the claim
seeking service connection for bilateral hearing loss are not
met.
2. Skin Tumors
In a June 1994 rating decision the RO denied the Veteran's
claim for service connection for skin tumors to include as a
result of exposure to herbicides during active service.
Specifically, the RO stated that the skin tumors are not
covered under the presumptive provisions for herbicide
exposure and that there was no evidence of the condition
during service or within an applicable presumptive period
following service. The Veteran was notified of the denial
and his appellate rights in a letter dated July 1994. The RO
received the next communication regarding this claimed
disability and service connection in March 2002, more than
one year after the June 1994 notice letter. Therefore, the
June 1994 decision is final. Id.
The Veteran's claim to reopen entitlement to service
connection for a skin disorder was received in March 2002.
Thus, the post-August 29, 2001 regulation regarding new and
material evidence applies, 38 C.F.R. § 3.156(a).
The evidence of record at the time of the July 1994 rating
decision included the Veteran's service treatment records,
which were negative for a skin disorder and no evidence
linking the Veteran's current skin disorder to his military
service, to include any applicable presumptions. Evidence
received since the July 1994 denial includes VA outpatient
treatment records, private treatment records, lay statements
and the Veteran's testimony before the undersigned Acting
Veterans Law Judge.
Upon review of the record, the Board finds that some of the
evidence presented since the prior final denial of this claim
in June 1994 is new, in that it was not previously of record,
but it is not material, in that it does not raise a
reasonable possibility of substantiating the claim. As
noted, the basis of denial in June 1994 was that there was no
evidence of a skin disorder during the Veteran's military
service and no evidence linking the Veteran's current skin
disorder to his military service, to include any applicable
presumptions. Since the June 1994 decision the Veteran has
submitted current VA outpatient treatment reports which show
a current skin disorder and has provided written and oral
testimony regarding his claim but has not submitted any
evidence linking his current skin disorder to his military
service. Such evidence does not raise a reasonable
possibility of substantiating the claim and is therefore not
new and material. 38 C.F.R. § 3.156(a).
The Board concludes that new and material evidence has not
been received, and that the criteria for reopening the claim
seeking service connection for a skin disorder are not met.
Service Connection
The Veteran seeks service connection for post-operative
stomach cancer secondary to herbicide exposure. Service
treatment records are negative for any indication of stomach
cancer or symptoms of stomach cancer. While the Veteran's
service treatment records show that he complained of stomach
trouble during his pre-induction examination, dated January
1966, the examining physician noted that x-rays were
completed and no diagnosis was rendered. Also, the
separation examination, dated November 1969, did not indicate
any stomach complications or disabilities.
Post-service treatment records indicate that the Veteran was
treated in November 1974 for acute gastritis, approximately
five years after discharge from service. A VA outpatient
treatment record dated October 2001 indicates that the
Veteran has a history of carcinoma of the stomach, status
post partial gastrectomy. None of the records indicate that
the carcinoma of the stomach had its onset in or was in any
way related to the Veteran's active service.
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In
general, service connection requires (1) medical evidence of
a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in- service disease or injury
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999).
In addition, under section 3.310(a) of VA regulations,
service connection may be established on a secondary basis
for a disability that is proximately due to or the result of
service-connected disease or injury. 38 C.F.R. § 3.310(a).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
caused by or (b) aggravated by a service-connected
disability. Allen v. Brown, 7 Vet. App. 439 (1995).
Cancer may be presumed to have been incurred during active
military service if it is manifest to a degree of 10 percent
within the first year following active service. 38 U.S.C.A.
§§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.
The law provides that a "veteran who, during active
military, Naval, or air service, served in the Republic of
Vietnam during the period beginning January 9, 1962, and
ending in May 7, 1975, shall be presumed to have been exposed
during such service to an herbicide agent...unless there is
affirmative evidence to establish that the veteran is not
exposed to any such agent during that service." 38 U.S.C.A.
§ 1116(f) (West 2002).
VA regulations provide that if a Veteran was exposed to an
herbicide agent (Agent Orange) during active service,
presumptive service connection is warranted for the following
disorders: Chloracne or any acneform disease consistent with
chloracne; type II diabetes; Hodgkin's disease; chronic
lymphocytic leukemia; multiple myeloma; non-Hodgkin's
lymphoma; acute and subacute peripheral neuropathy; porphyria
cutanea tarda; prostate cancer, respiratory cancers (cancer
of the lung, bronchus, larynx, or trachea); and, soft tissue
sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma). Presumptive service connection
for these disorders as a result of Agent Orange exposure is
warranted if the requirements of Section 3.307(a)(6) are met.
38 C.F.R. § 3.309(e).
The Secretary of VA has determined that there is no positive
association between exposure to herbicides and any other
condition for which the Secretary has not specifically
determined that a presumption of service connection is
warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also
61 Fed. Reg. 57, 586-589 (1996); Notice, 64 Fed. Reg. 59,
232-243 (November 2, 1999).
Initially, the Board finds that service connection for post-
operative stomach cancer is not warranted on a presumptive
basis. First, there is no competent evidence of cancer being
manifested to any degree in the first year after the Veteran
completed his active service. Also, while the Veteran's
exposure to herbicides is presumed based on his Vietnam
military service, the Board notes that stomach cancer is not
one of the disabilities specified at 38 C.F.R. § 3.309(e).
Accordingly, as stomach cancer is not listed as one of the
presumptive disorders under that regulation, presumptive
service connection on the basis of Agent Orange exposure is
not warranted on a presumptive basis. 38 U.S.C.A. § 1116; 38
C.F.R. §§ 3.307, 3.309.
The Board also finds that service connection for post-
operative stomach cancer is not warranted on a direct basis.
First, as above, service treatment records are negative for
any indication of stomach cancer or symptoms of stomach
cancer. Second, there is a lapse of many years between the
Veteran's separation from service in 1969 and the first
indication of stomach cancer in 2001. Such a lapse of time
is a factor for consideration in deciding a service
connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333
(Fed. Cir. 2000). Finally, there is no medical evidence
linking the Veteran's stomach cancer to his military service.
During his testimony before the Board, the Veteran stated
that he was not treated during service for a stomach
condition and that he was not treated within one year of
discharge or shortly after discharge for stomach cancer. The
Veteran said that doctors have not attributed his stomach
cancer to herbicides. In all, the Veteran's testimony weighs
against a finding of service connection for his post-
operative stomach cancer.
The Board sympathizes with the Veteran, recognizes his
service in Vietnam, concedes his exposure to herbicides as a
part of such service, and understands fully his contentions.
However, for the reasons outlined above, the Board finds that
the preponderance of evidence is against the Veteran's claim
for service connection for post-operative stomach cancer on a
direct or presumptive basis. As the preponderance of the
evidence weighs against the claim, the benefit-of-the-doubt
doctrine does not apply. See 38 U.S.C.A. § 5107(b).
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. In the notice, VA will inform the claimant which
information and evidence, if any, that the claimant is to
provide to VA and which information and evidence, if any,
that VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v.
Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16
Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006). Notice should also address the rating
criteria and effective date provisions that are pertinent to
the appellant's claim. Dingess v. Nicholson, 19 Vet. App.
473 (2006).
With regard to the stomach cancer claim the RO provided the
appellant pre-adjudication notice by letter dated in April
2002.
With regard to the new and material evidence issues, in Kent
v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of
Appeals for Veterans Claims clarified VA's duty to notify in
the context of claims to reopen. With respect to such
claims, VA must both notify a claimant of the evidence and
information that is necessary to reopen the claim and notify
the claimant of the evidence and information that is
necessary to establish entitlement to the underlying claim
for the benefit that is being sought. To satisfy this
requirement, the Secretary is required to look at the bases
for the denial in the prior decision and to provide the
claimant with a notice letter that describes what evidence
would be necessary to substantiate those elements required to
establish service connection that were found insufficient in
the previous denial.
Specific to requests to reopen, the claimant must be notified
of both the reopening criteria and the criteria for
establishing the underlying claim for service connection.
See Kent v. Nicholson, 20 Vet. App. 1 (2006). However, the
duty to notify was not satisfied prior to the initial
unfavorable decisions because the Veteran was not notified of
the basis of the last final denials for the petitions to
reopen service connection claims.
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit held
that any error by VA in providing the notice required by 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed
prejudicial. However, in the recent case of Shinseki v.
Sanders, 129 S.Ct. 1696 (2009), the United States Supreme
Court determined that the Federal's Circuit's "harmless
error" analysis set forth in Sanders v. Nicholson was too
complex and rigid, its presumptions imposed unreasonable
evidentiary burdens upon the VA, and it would too often
require an appellate court to treat as harmful errors that in
fact were harmless. Instead, the Supreme Court held that in
cases were notice was inadequate, the reviewing court should
consider the totality of the circumstances in determining
whether the Veteran was prejudiced by the error.
In this case, the Board finds that the notice error did not
affect the essential fairness of the adjudication because the
notice letter of November 2001 for bilateral hearing loss and
the notice letter of April 2002 for the skin condition both
listed the criteria necessary for service connection and the
criteria necessary to reopen the previously denied claims. A
review of the claims file shows that these claims were
previously denied because the Veteran failed to provide
evidence that either condition was related to his active
service, a key element to a service connection claim. Thus,
notice of the elements for service connection and notice of
the definitions of new and material are sufficient to inform
the Veteran of evidence needed to proceed with his claims.
The Board also notes that the Veteran was notified of the
bases for the prior final denials in the rating decision of
October 2002 and in the statement of the case issued in March
2003. In addition, a new VCAA notice was issued in July 2006
that fully addressed the bases for the prior final denials
and described the evidence necessary to substantiate those
elements required to establish service connection that were
found insufficient in the previous denials. Finally, the
Board finds that the Veteran was not prejudiced by the notice
error as the Veteran appeared before the Board and was
informed of and discussed the new and material evidence
necessary to reopen his claims and he was provided 60 days to
submit additional evidence in support of his claims.
Therefore, the Board finds that the notice error did not
affect the essential fairness of the adjudication.
VA has a duty to assist the Veteran in the development of the
claim. This duty includes assisting the Veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration. These four factors are:
(1) whether there is competent evidence of a current
disability or persistent or recurrent symptoms of a
disability; (2) whether there is evidence establishing that
an event, injury, or disease occurred in service, or evidence
establishing certain diseases manifesting during an
applicable presumption period; (3) whether there is an
indication that the disability or symptoms may be associated
with the veteran's service or with another service-connected
disability; and (4) whether there otherwise is sufficient
competent medical evidence of record to make a decision on
the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R.
§ 3.159(c)(4).
With respect to the third factor above, the Court of Appeals
for Veterans Claims has stated that this element establishes
a low threshold and requires only that the evidence
"indicates" that there "may" be a nexus between the
current disability or symptoms and the veteran's service.
The types of evidence that "indicate" that a current
disability "may be associated" with military service
include, but are not limited to, medical evidence that
suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, a VA examination was not required for the
petitions to reopen claims for service connection for
bilateral hearing loss and a skin condition as the Veteran
failed to submit new and material evidence to reopen his
claims. A VA examination was not required for the claim for
service connection for post-operative stomach cancer
secondary to herbicide exposure as the evidence failed to
show any association or connection between the disorder and
the Veteran's service. The Veteran's records and testimony
indicate that he was not treated for the stomach disability
in service or within one year of service. Therefore, VA
examinations were not required for any of the claims
addressed herein.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained VA outpatient
treatment records and private treatment records. The Veteran
submitted lay statements and was provided an opportunity to
set forth his contentions during the hearing before the
undersigned Veterans Law Judge. The Veteran and his
representative indicated at the Board hearing that they might
have additional evidence for consideration, thus the Board
left the record open for 60 days to allow the Veteran ample
time to submit additional evidence. However, the 60 day
allotment has expired and no additional evidence has been
submitted. Hence, no further notice or assistance to the
Veteran is required to fulfill VA's duty to assist in the
development of the claim. Smith v. Gober, 14 Vet. App. 227
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
ORDER
New and material evidence having not been submitted, the
claim to reopen a previously denied claim for entitlement to
service connection for bilateral hearing loss is denied.
New and material evidence having not been submitted, the
claim to reopen a previously denied claim for entitlement to
service connection for skin tumors to include as secondary to
herbicide exposure is denied.
Service connection for post-operative stomach cancer to
include as secondary to herbicide exposure is denied.
REMAND
The Veteran seeks service connection for enlarged prostate,
chronic prostatitis, claimed as prostate cancer. At his
hearing before the undersigned, the Veteran stated that he
has not been diagnosed with prostate cancer. However, it
appears that the Veteran had some genitourinary conditions in
service which were noted in his service treatment records
that may have a connection to his chronic prostatitis.
The Veteran was afforded a VA examination in November 2002.
The examiner stated that the prostatitis may be related to
Agent Orange; however, the examiner did not review the claims
file in conjunction with the examination and did not provide
an opinion indicating whether the prostatitis had its onset
during active service. The fulfillment of the statutory duty
to assist requires a thorough and contemporaneous examination
which takes into account the records of prior medical
treatment, so that the evaluation of the claimed disability
will be a fully informed one. Green v. Derwinski, 1 Vet.
App. 121, 124 (1991).
Based upon the foregoing, the Veteran should be scheduled for
a new VA examination.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA
examination to determine the nature and
etiology of his chronic prostatitis. The
claim folder should be made available to
the examiner for review prior to the
examination, and the examination report
should indicate that the claim file was
reviewed.
The examiner is asked to determine if the
Veteran's chronic prostatits is at least
as likely as not (i.e., 50 percent or
greater probability) related to his active
service. The examiner should specifically
address any instances of genitourinary
treatment noted in the service treatment
records.
The examiner should provide a rationale
for all opinions expressed.
2. Following the requested development,
the Veteran's claim should be
readjudicated based upon all evidence of
record. If the benefit sought on appeal
remains denied, the Veteran and his
representative should be provided with a
supplemental statement of the case and
should have an applicable opportunity to
respond. The case should then be returned
to the Board.
The Veteran has the right to submit additional evidence and
argument on the matter or 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 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 Supp. 2008).
______________________________________________
APRIL MADDOX
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs