Citation Nr: 1757770 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-28 512A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for prostate cancer, to include as secondary to ionizing radiation exposure during service. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1945 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the claim now resides with the Philadelphia RO. In March 2015, the Veteran and his spouse testified at a videoconference Board hearing before a Veterans Law Judge who is no longer employed at the Board. The Veteran was offered a replacement hearing before another Veterans Law Judge in August 2016, but he declined the opportunity. In a July 2015 decision, the Board denied the Veteran's claim of entitlement to service connection for prostate cancer, to include as secondary to ionizing radiation exposure during service. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in a July 2016 Order, the Court vacated the July 2015 Board decision and remanded the matter to the Board for development consistent with the Joint Motion for Remand of the Veteran and Secretary of Veterans' Affairs. The Board previously remanded this claim in January 2017 for additional development. For reasons set forth below, the Board finds that there has not been substantial compliance with one of the January 2017 remand directives. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) ( 2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND In its January 2017 decision, the Board remanded the issue of entitlement to service connection for prostate cancer, to include as secondary to ionizing radiation exposure during service, for further development, to include: (1) obtaining radiation dose estimations taking into account the Veteran's time spent stationed aboard the U.S.S. LST 816 at Hiroshima and Nagasaki, Japan between August 24, 1945 and June 7, 1946; (2) referring the claim to the Under Secretary for Benefits to determine whether it is as least as likely as not that the Veteran's prostate cancer is related to his military service, including ionizing radiation exposure; and (3) issuing a supplemental statement of the case. The Board notes that there has been substantial compliance with most of the remand directives, with the exception of obtaining radiation dose estimations concerning the Veteran's presence in Hiroshima and Nagasaki, Japan. Pursuant to the Board's January 2017 remand, in May 2017, the AOJ requested that the Defense Threat Reduction Agency (DTRA) verify the Veteran's participation in a radiation risk activity and provide a new dose estimation regarding the Veteran's occupation in Hiroshima while serving aboard the U.S.S. LST 816 between August 24, 1945 and June 7, 1946. While the AOJ noted that the Veteran was required to leave his ship and go on land as part of his duties in the vicinity of Hiroshima, the AOJ did not note, however, that the Veteran's duties also included leaving the U.S.S. LST 816 to go on land in the vicinity of Nagasaki. In a June 22, 2017 memorandum, DTRA confirmed the Veteran was a member of the American occupation forces in Hiroshima, Japan, following World War II. An updated radiation dose estimation was provided regarding the Veteran's participation in the occupation of Hiroshima. As the AOJ did not request that DTRA provide a separate dose estimation concerning the Veteran's time spent on land in Nagasaki between August 24, 1945 and June 7, 1946, DTRA's June 2017 memorandum did not provide an estimated radiation dose during the Veteran's participation in the occupation of Nagasaki. Additionally, if DTRA did in fact consider the Veteran's occupancy of Nagasaki and factored this occupation into one radiation dose estimation, to encompass occupation in both Hiroshima and Nagasaki between 1945 and 1946, this is unclear, as DTRA's June 2017 memorandum makes no note of this, nor is the Veteran's occupation of Nagasaki mentioned at any point in the memorandum. The Veteran has asserted throughout his appeal that he was present aboard the U.S.S. LST 816 near, as well as on land in, both Hiroshima and Nagasaki, Japan between August 24, 1945 and June 7, 1946. In the July 2016 Joint Motion for Remand, the Board was specifically instructed to ensure that VA's duty to assist the Veteran adequately reflects obtaining a radiation dose estimation from DTRA regarding the Veteran's service in both Hiroshima and Nagasaki, Japan. The Board's January 2017 remand instructed the AOJ to obtain radiation dose estimations encompassing the Veteran's presence near and in Hiroshima and Nagasaki, Japan. The AOJ's June 2017 memorandum to DTRA failed to request that DTRA's radiation dose estimation encompass the Veteran's presence aboard the U.S.S. LST 816 near, as well as on land in, both Hiroshima and Nagasaki, Japan. Consequently, DTRA's June 2017 radiation dose estimation addressed only the Veteran's presence in Hiroshima, Japan, rather than his presence in both Hiroshima and Nagasaki, Japan. For these reasons, although further delay is regrettable, another remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). 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). Expedited handling is requested.) 1. In accordance with 38 C.F.R. § 3.311(a)(1) (2017), obtain radiation dose estimations as to: a) The Veteran's participation in the occupation of Hiroshima, Japan, to include both land and sea, while the Veteran was stationed aboard the U.S.S. LST 816 between August 24, 1945 and June 7, 1946. The Veteran has indicated that his ship was in the vicinity of Hiroshima, at Hiro Wan and Kure, during January 13 to 14, and 18 to 23, 1946, and February 17 to 22, 1946. b) The Veteran's participation in the occupation of Nagasaki, Japan, to include duties on both land and sea, while the Veteran was stationed aboard the U.S.S. LST 816 between August 24, 1945 and June 7, 1946. c) If a radiation dose estimation cannot be obtained, with regard to either the Veteran's occupation of Hiroshima or Nagasaki this finding must be documented in the Veteran's claims file. d) If a radiation dose estimation obtained represents the Veteran's occupation of both Hiroshima and Nagasaki (as combined into one estimation), this finding must be documented in the Veteran's claims file. 2. Thereafter, in accordance with 38 C.F.R. § 3.311(b) (2017) and 38 C.F.R. § 3.311(c) (2017), refer the claim to the Under Secretary for Benefits to determine whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's prostate cancer is related to the Veteran's service, including ionizing radiation exposure. The opinion should be based on dose estimations which contemplate all the information noted above, and specifically considers that the Veteran was required to leave his ship and go on land as part of his duties in the vicinity of Hiroshima and Nagasaki, Japan; he was not merely in close proximity to the areas. 3. Per 38 C.F.R. § 3.311(c) (2) (2017), if the Under Secretary for Benefits is unable to provide a determination to the above inquiry, it must refer the matter to an outside consultant in accordance with 38 C.F.R. § 3.311(d) (2017). 4. After completing all indicated development, the AOJ should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. 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 case 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. §§ 5109B, 7112 (2012). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2), 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) (2017).