Citation Nr: 18153745 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 11-25 959 DATE: November 28, 2018 REMANDED Entitlement to service connection for the Veteran's cause of death, to include prostate cancer as a result of exposure to ionizing radiation is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1981 to May 1984. He passed away in May 2010, and the Appellant is his surviving spouse. In November 2018, the Appellant filed a motion to advance her case on the docket (AOD) due to severe financial hardship. The Board finds that there is sufficient cause to grant the AOD motion. 38 U.S.C. § 7107 (a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). 1. Entitlement to service connection for the Veteran's cause of death, to include prostate cancer as a result of exposure to ionizing radiation is remanded. Unfortunately, there has not been substantial compliance with the Board’s May 2014 remand directives regarding the issue of entitlement to service connection for the Veteran’s cause of death. As such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2014 remand, the Board noted that the Veteran’s prostate cancer qualified as a radiogenic disease pursuant to 38 C.F.R. § 3.311(b)(2), which manifested in the applicable period following the requisite amount of time post-service (5 or more years) pursuant to 38 C.F.R. § 3.311(b)(5). Prior to his death, the Veteran claimed that he and his plattoon were responsible for the safety and security of nuclear weapons while stationed in Germany. See December 2009 Radiation Risk Activity Information Sheet. However, as noted in the Board May 2014 remand, development for a dosage estimate had not yet been performed. Therefore, the Board requested that the Veteran’s file be forwarded to the Undersecretary for Health, pursuant to 38 C.F.R. § 3.311(a)(2)(iii). In August 2018, the agency of original jurisdiction (AOJ) sent a letter to the United States Army Dosimetry Center, requesting an estimated dosimetry and radiation exposure statement. That same month, the Army Dosimetry Center responded that it was unable to locate any records pertaining to the Veteran. No further development was taken and, in September 2018, the AOJ issued a supplemental statement of the case continuing to deny the issues on appeal. Although the AOJ pursued development through the Army Dosimetry Center, it did not comply with the May 2014 remand directives to forward the file to the Undersecretary for Health, as required for this type of claim pursuant to 38 C.F.R. § 3.311(a)(2)(iii). When a remand order is not complied with, the claim must be remanded for substantial compliance. Therefore, this matter must be remanded for additional development in accordance with Stegall. 11 Vet. App. 268. 2. Entitlement to DIC is remanded. As noted in the May 2014 remand, the issue of entitlement to DIC is inextricably intertwined with the claim of entitlement to service connection for cause of the Veteran’s death. See Parker v. Brown, 7 Vet. App. (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, a remand of the claim for entitlement to DIC is required. The matters are REMANDED for the following action: 1. Forward the records related to the Veteran’s alleged radiation exposure (to include service records, lay statements, and any other pertinent evidence regarding radiation exposure) to the Undersecretary for Health for preparation of a dose estimate, pursuant to 38 C.F.R. § 3.311(a)(2)(iii), to the extent feasible. If the Undersecretary cannot provide a specific estimate, a range of possible doses should be provided. 2. Once an estimate has been obtained, if and only if it is determined from that estimate that the Veteran was exposed to ionizing radiation, refer this matter to the Under Secretary for Benefits for further consideration in accordance with paragraphs (c) through (e) of 38 C.F.R. § 3.311. The Under Secretary for Benefits must determine, in writing, and based on sound scientific and medical evidence, whether it is at least as likely as not, or that there is no reasonable possibility, that the Veteran’s prostate cancer resulted from radiation exposure in service, taking into consideration the factors listed under 38 C.F.R. § 3.311(e). If required, the Under Secretary for Benefits should consider whether an opinion from an outside consultant is necessary to address this claim, per 38 C.F.R. § 3.311(d). 3. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Appellant and her representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel