Citation Nr: 18159651 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-23 951 DATE: December 20, 2018 REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for anemia, to include as due to exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from July 1956 to May 1960. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 1. Entitlement to service connection for prostate cancer is remanded. 2. Entitlement to service connection for anemia is remanded. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims and to afford him every possible consideration. The Veteran contends that he is entitled to service connection for prostate cancer and anemia as a result of exposure to ionizing radiation during Operation PLUMBBOB. Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 21 (1997). First, there are diseases that are presumptively service-connected in radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.311 if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1043-44 (Fed. Cir. 1994). When it is determined that a veteran was exposed to ionizing radiation as a result of participating in atmospheric testing of nuclear weapons and subsequently developed a radiogenic disease, such as prostate cancer, and that the prostate cancer became manifest five years or more after exposure, the matter shall be referred to the Under Secretary for Benefits for further consideration prior to adjudication. 38 C.F.R. §§ 3.311(b)(1), (2)(xxiii), & (5)(iv). In regard to his prostate cancer, the Defense Threat Reduction Agency (DTRA) has confirmed the Veteran’s participation in Operation PLUMBBOB in 1957. Furthermore, medical evidence indicates that the Veteran was diagnosed with prostate cancer more than five years after exposure to ionizing radiation. Therefore, this matter was required to be referred to the Under Secretary for Benefits prior to adjudication. The record contains an “Administrative Decision – Prostate Cancer” prepared by VA staff at the RO, setting out an opinion that it is unlikely that the Veteran’s prostate cancer resulted from in-service exposure to ionizing radiation. However, there is no indication that the claim was ever referred to the Under Secretary for Benefits. As such, additional development is required. As to the Veteran’s claim for service connection for anemia, the condition is not among the presumptive conditions listed in 38 C.F.R. § 3.309(d) or one of the radiogenic diseases listed under § 3.311; thus, service connection due to radiation exposure cannot be established under either of those provisions. However, direct service connection could potentially be established. In this regard, the Veteran has not been afforded a VA examination for his anemia despite the evidence of a current disability and his contention that his disability is related to his documented participation in nuclear bomb testing. Further development is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). These matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA and private treatment records. 2. After the foregoing development has been completed to the extent possible, refer the claim of entitlement to service connection for prostate cancer as a result of exposure to ionizing radiation to the Under Secretary for Benefits for review pursuant to 38 C.F.R. § 3.311 (c) & (e). 3. Arrange to have the Veteran scheduled for an examination by an appropriate clinician to obtain an opinion as to the etiology of his anemia. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s anemia had its onset in, or is otherwise attributable to, service, to particularly include his documented in-service exposure to ionizing radiation. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel