04-12 532
04-12 532
| Board of Vet. App. | Jan 31, 2017Background
- Veteran served on active duty Feb 1954–Dec 1957 and seeks service connection for prostate and bladder cancer, including as due to in-service ionizing radiation exposure.
- Prostate cancer claim on appeal since an August 2002 RO denial; bladder cancer claim appealed from a January 2012 RO decision; both now under Portland RO jurisdiction.
- Multiple prior remands and Board decisions (including a vacatur and remand by the Court in 2009); remand instructions from September 2015 required an oncologist nexus opinion which was not obtained.
- Veteran and counsel participated in prior hearing; counsel later waived a new hearing before the deciding VLJ and withdrew a Travel Board request for the bladder claim.
- Veteran submitted family medical/cancer history and contends lack of family history (and his twin’s lack of cancer) supports service causation; Board requested the examiner to address this evidence.
- Because prior remand instructions were not substantially complied with, the Board again remanded both claims for an oncologist advisory opinion and re-adjudication by the AOJ; expedited handling ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for prostate cancer, including due to ionizing radiation | Prostate cancer is related to active service/ionizing radiation; no family history supports service etiology | AOJ previously denied service connection; needs medical nexus evidence | Remanded for oncologist nexus opinion addressing radiation and service causation and family history evidence |
| Service connection for bladder cancer, including due to ionizing radiation | Bladder cancer is related to active service/ionizing radiation | AOJ previously denied; no adequate medical nexus of record | Remanded for oncologist nexus opinion addressing radiation and service causation and family history evidence |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (Board must ensure compliance with prior remand orders)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence after remand; remanded matters must be handled expeditiously)