Citation Nr: 1329484 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-18 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to December 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was the subject of a Board remand dated in January 2013 for the purpose of scheduling him for a Board hearing. The Veteran later provided testimony at a July 2013 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's Virtual VA electronic claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for prostate cancer, claimed as due to ionizing radiation exposure. A review of the service treatment records reveals no complaints, treatment, or diagnoses of prostate cancer, but the service personnel records do reflect that the Veteran was exposed to radiation during atmospheric testing conducted as part of Operation CASTLE, Test Shot Bravo. The Veteran was granted service connection for basal cell carcinoma based on this radiation exposure, but he has appealed the RO's denial of his claim for service connection for prostate cancer based on the same incident of radiation exposure. For all atmospheric weapons test participation claims where radiation exposure is claimed and a radiogenic disease (to include prostate cancer) is diagnosed after service, 38 C.F.R. § 3.311 requires the forwarding of all records pertaining to the Veteran's radiation exposure for preparation of a dose estimate from the Department of Defense. 38 C.F.R. § 3.311(a)(2). After it is determined by the dose assessment that the Veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b) (2012). When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311(c)(1). This section provides two options: (i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the Veteran's disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section. (ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1). In this matter, due to the large volume of cases before VA, a generic expedited screening dose estimate process was undertaken by the Defense Threat Reduction Agency in the year 2006, which was said to afford the Veteran the benefit of the doubt. However, after hearing the Veteran's testimony and reviewing the evidence in the claims file, the Board finds that further development pursuant to 38 C.F.R. § 3.311 is warranted. The amount of ionizing radiation received by the Veteran was deemed sufficient to warrant service connection for one of his claimed cancers in a nearby anatomical region of the body. The Veteran also provided testimony as to his exposure to additional radiation related to Test Shot Bravo of Operation CASTLE, on the day following the detonation. Specifically, the Veteran indicated that he delivered water back to the region after it was determined that water in the area had been rendered unsafe due to the unexpectedly high amount of radiation released. This aspect of the description of his activities was included in a statement provided to the service department in December 2007, but was never expressly or specifically considered by the service department as a result of an expedited screening dose estimate process. This assertion by the Veteran also appears consistent with articles he has submitted indicating that the payload of Test Shot Bravo was 250 percent of predicted value and did result in environmental radiation contamination. As a result, the Board finds that a more specific dose estimate should be obtained from the Department of Defense for this Veteran's exposure, in full compliance with 38 C.F.R. § 3.311(a)(2). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Refer the estimates and supporting documentation to the Department of Defense, in full compliance with 38 C.F.R. § 3.311, for a dose estimate under the specific facts of this case (rather than the generic expedited screening dose estimate previously provided, to the extent possible). This should include the Veteran's description of having returned to the area on a ship on the day following the detonation of Test Shot BRAVO with a water tank supply. Specifically, he indicated that he supplied water to the local population on an island and returned to Kwajalein the same day. The Veteran has asserted that the water tank was provided because the water on the island had been contaminated by Test Shot Bravo. 2. After obtaining the dose estimate, refer the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). The Under Secretary for Benefits should consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health, if necessary. After referral, the Under Secretary for Benefits should determine the likelihood that the Veteran's claimed exposure to radiation in service resulted in his prostate cancer. Specifically, the Under Secretary for Benefits should determine whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not the Veteran's prostate cancer resulted from exposure to radiation in service or whether there is no reasonable possibility that prostate cancer resulted from radiation exposure in service. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).