Citation Nr: 1614062	
Decision Date: 04/06/16    Archive Date: 04/25/16

DOCKET NO.  07-20 211	)	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 a result of exposure to ionizing radiation.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to November 1967.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

This matter was previously before the Board in September 2010, when it was remanded for further development.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

In September 2010, the Board determined there was evidence of record that indicates the Veteran may have been exposed to ionizing radiation in service and found the special development procedures outlined in 38 C.F.R. § 3.311(a) were necessary.  The Board directed the AOJ to gather all available information pertaining to the Veteran's level of exposure to ionizing radiation in service, so the records could be forwarded to the VA Under Secretary of Health for the preparation of a dose estimate, to the extent feasible, based on available methodologies.  38 C.F.R. § 3.311(a)(2)(iii).  The claim was then to be forwarded to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c).

In January 2011, the AOJ sent a request to the U.S. Army Dosimetry Center seeking information pertaining to the Veteran.  The U.S. Army Dosimetry Center replied in March 2011 that they were unable to locate any records for the Veteran.  It appears the AOJ denied the claim based on this negative response and did not forward the claim to the VA Under Secretary of Health for the preparation of a dose estimate or to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. §3.311(c), as directed in the Board's September 2010 remand.  As such, there has not been substantial compliance with the Board's prior directives.  Further, this development action is required to properly adjudicate the Veteran's claim in accordance with 38 C.F.R. § 3.311.

Accordingly, the case is REMANDED for the following action:

1.  Forward the available records pertaining to exposure to ionizing radiation in service, to include the Nuclear Duty Position Medical Notification (DA 3181) and the Veteran's statements, to the VA Under Secretary of Health for the preparation of a dose estimate, to the extent feasible, based on available methodologies.  Then, forward the claim to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c).

2.  Once the foregoing is completed, readjudicate the issue on appeal.  If the benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case 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).






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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 2014).




_________________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).