Citation Nr: 18147236 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-10 733 DATE: November 2, 2018 REMANDED Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide agent exposure and toxic chemical exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1961 to April 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision. The Board remanded this case for further development in December 2015 and September 2017. As will be discussed below, the Board finds that there was not substantial compliance with the Board’s September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand). Thus, the Veteran’s claim for service connection must be remanded for further development.   1. Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide agent exposure and toxic chemical exposure is remanded. In the September 2017 remand, the Board directed VA to provide the Veteran with the Agency of Toxic Substances and Disease Registry (ATSDR) report concerning airborne polychlorinated biphenyl exposure at Fort McClellan. The Veteran’s claims folder indicates he received this information in an October 2017 letter. The Board’s remand also ordered VA to submit the Veteran’s service personnel records to VA’s Compensation Service to forward to the Department of Defense for any information as to the nature and extent of any exposure to chemical and biological agents while the Veteran was training at the Army Chemical School at Fort McClellan from July 1963 to August 1963. The Veteran’s claims folder contains a Service History Review Checklist that indicates the Veteran was not found in the exposure database, that he completed 143 hours of Chemical-Biological-Radiologic (CBR) training, where the 3-drop training method would have been applied, and that participation in a VX nerve gas exercise could not be verified. The checklist shows that the Department of Defense did not receive the Veteran’s service treatment records. The Board’s remand then instructed VA to request a medical opinion from an oncologist, internist, or other appropriate VA clinician concerning whether the Veteran’s prostate cancer is at least as likely as not related to exposure to any chemical or biological agents while stationed at Fort McClellan from July 1963 to August 1963. The Veteran’s claims folder does not demonstrate this action was accomplished by VA. On remand, such an opinion must be obtained. Concerning development of the Veteran’s claim for service connection based on ionizing radiation exposure, the Board ordered VA to request VA Under Secretary for Health to provide a radiation dose estimate for the Veteran and then refer the claim to VA Under Secretary for Benefits for a determination as to whether it is at least as likely as not that the Veteran’s prostate cancer resulted from radiation exposure in service, to the extent feasible. The Veteran’s claims folder does not show these actions occurred. The Veteran’s claims folder indicates that the U.S. Army Dosimetry Center located his full history of exposure to ionizing radiation, which shows a dose of 0.034 rem. The Veteran’s service treatment records include a Report of Exposure to Ionizing Radiation, which also reflects a dose of 0.034 rem. Prostate cancer is a radiogenic disease under this section. 38 C.F.R. § 3.311 (b)(2)(xxiii). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1). Further, when it has been determined that a veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the VA Under Secretary for Benefits for further consideration. The VA Under Secretary for Benefits is to consider the claim with reference to specified factors and may request an advisory medical opinion from the VA Under Secretary for Health. If after this consideration, the Under Secretary for Benefits determines that 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 Agency of Original Jurisdiction in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(i). The development procedures outlined in 38 C.F.R. § 3.311 are not discretionary and have not been accomplished. On remand, VA must undertake the appropriate development for the Veteran’s claim for service connection based on exposure to ionizing radiation.   The matter is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding whether the Veteran’s prostate cancer is at least as likely as not related to exposure to any chemical or biological agents while stationed at Ft. McClellan from July 1963 to August 1963. In providing the opinion, the clinician must discuss: (a.) The ATSDR report concerning airborne polychlorinated biphenyl exposure at Fort McClellan. (b.) The Service History Review Checklist that demonstrates the Veteran completed 143 hours of Chemical-Biological-Radiologic (CBR) training, where the 3-drop training method would have been applied. The complete rationale for all opinions expressed, must be set forth in the examination report. 2. In accordance with 38 C.F.R. § 3.311(b)(2), the case should be referred to the VA Under Secretary for Health, for preparation of a radiation dose estimate. (Continued on the next page)   3. After a dose estimate has been provided by the VA Under Secretary for Health, the case should be forwarded to the VA Under Secretary for Benefits to obtain an advisory medical opinion as any relationship between the Veteran’s prostate cancer and in-service radiation exposure. JOHN Z JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel