Citation Nr: 18155459 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-29 200 DATE: December 4, 2018 REMANDED The claim of entitlement to service connection for prostate cancer and residuals is remanded. The claim of entitlement to service connection for erectile dysfunction is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder, claimed as depression, is remanded. REASONS FOR REMAND 1. Entitlement to service connection for prostate cancer The Veteran asserts that his prostate cancer is related to his documented exposure to ionizing radiation during service. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Hilkert v. West, 11 Vet. App. 284, 289 (1998). First, if a Veteran exposed to radiation during active duty later develops one of the diseases listed at 38 C.F.R. § 3.309(d)(2), which encompass a variety of different forms of cancer, a rebuttable presumption of service connection arises. See 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. However, such does not include prostate cancer. Second, service connection may be established if a radiation-exposed Veteran develops a “radiogenic disease” and meets the remainder of requirements defined in 38 C.F.R. § 3.311. Prostate cancer is included in the list of radiogenic diseases. 38 C.F.R. § 3.311(b)(2)(xxiii). Third, service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). The evidence shows the Veteran’s prostate cancer was diagnosed in 1992, more than five years after discharge from service. Therefore, the procedural development for claims codified at 38 C.F.R. § 3.311 based on exposure to ionizing radiation are applicable. See 38 C.F.R. § 3.311(b)(4)(iv). Development completed by the agency of original jurisdiction (AOJ) in this regard includes a June 2014 letter sent to the Defense Threat Reduction Agency (DTRA), which noted the Veteran was present at Camp Desert Rock, Nevada in 1957. In the August 2014 rating decision on appeal, the AOJ noted that the dose estimate provided by an August 2014 letter from DTRA, as well as an adjusted prostate dose provided by the Chief Public Health and Environmental Hazards Officer in a December 2006 Memoranda, which the AOJ noted was less than the applicable screening doses. As a result, the AOJ concluded that it was unlikely that the Veteran’s prostate cancer resulted from exposure to ionizing radiation during service. Despite the foregoing development, the claims file does not reflect that the Veteran’s claim was referred to the Under Secretary for Benefits, as required by 38 C.F.R. § 3.311(b)(1)(iii). Therefore, remand is necessary ensure full compliance with the procedural development required under 38 C.F.R. § 3.311, specifically referral to the Under Secretary for Benefits under 38 C.F.R. § 3.311(b)(1)(iii).  2. Entitlement to service connection for erectile dysfunction 3. Entitlement to service connection for depression The Veteran also seeks service connection for erectile dysfunction as secondary to prostate cancer, and for depression as secondary to either prostate cancer or his service-connected bilateral hearing loss and tinnitus. Further development and adjudication of the claim of entitlement to service connection for prostate cancer may provide evidence in support of these claims. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on these issues. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the Board will not address these claims pending completion of the development directed below. The matters are REMANDED for the following action: Refer the case to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c), who may request an advisory medical opinion from the Under Secretary of Health under 38 C.F.R. § 3.311(b), (c)(1). Advise the Under Secretary for Health as to the following credible statements made by the Veteran regarding his radiation exposure, as set forth during his August 2018 hearing: a) In addition to his assignment as a clerk typist, he also served as a Jeep driver, taking officers and photographers to gun sites close to bomb sites. b) He retrieved equipment from bomb sites to a staging area referred to as the graveyard. c) He was close enough at the time of two tests that he sustained a “sunburn” on the back of his head from the heatwave. For purposes of making this dose determination, it is assumed that these lay statements are credible in relationship to the Veteran’s involvement with these programs. See 38 C.F.R. § 3.311(a)(4)(i), (ii). Then, depending on the result of the dose assessment, refer the claim to the Under Secretary for Benefits for further consideration, including an opinion, if appropriate. See 38 C.F.R. § 3.311(b)(1)(iii). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel