Citation Nr: 20006930 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 11-21 239A DATE: January 28, 2020 REMANDED Entitlement to service connection for basal cell carcinoma, claimed as skin cancer, due to radiation exposure, is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Navy from January 1977 to January 1979 with a period of active duty for training (ACDUTRA) from February 1975 to June 1975. This matter is on appeal from a September 2010 rating decision. The Veteran did not request a hearing. The Board remanded this appeal in July 2016 and June 2018 for additional development. The Veteran asserts that his basal cell carcinoma, claimed as skin cancer, is due to radiation exposure during active duty service. The Veteran asserts that while stationed on the USS Ogden (LPD-5), he spent time at Kwajalein Island in 1978 where he was exposed to radiation. Review of the Veteran’s medical treatment record shows numerous treatments and surgery for basal cell carcinoma. Review of the Veteran’s military personnel record shows the Veteran was assigned to the USS Ogden from June 1977 to January 1979. In the July 2016 Board remand, the Board noted that the Veteran’s basal cell carcinoma skin 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). Specifically, where a “radiogenic disease” first becomes manifest after service, and it is contended that the disease is a result of 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). VA must request any available records concerning the Veteran’s exposure to radiation. In claims based upon participation in atmospheric nuclear testing, dose date will be requested from the appropriate office of the Department of Defense. 38 C.F.R. § 3.311 (a)(2)(i). Otherwise, records normally include, but may not be limited to, the Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran’s radiation dose in service. 38 C.F.R. § 3.311 (a)(2)(iii). The controlling regulation pursuant to 38 C.F.R. § 3.311 (a)(2)(iii) require that all records be forwarded to the Under Secretary for Health, who is responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. If, after being forwarded to the Under Secretary of Health, it is determined by the dose assessment that the Veteran was exposed to radiation, the AOJ is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311 (b). When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311 (e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311 (c)(1). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant’s exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311 (c)(1). The July 2016 Board remand instructed the agency of original jurisdiction (AOJ) to forward the Veteran’s records to the Undersecretary for Health for preparation of a dose estimate pursuant to 38 C.F.R. § 3.311 (a)(2)(iii). In April 2017, the regional office (RO) forwarded the Veteran’s claims file to the Naval Dosimetry Center to verify the Veteran’s participation in the claimed radiation risk activity. In a May 2017 response, the Naval Dosimetry Center stated that review of the exposure registry by name, command, service number and social security number showed no reports of occupational exposure to radiation relating to the Veteran. The center stated they also reviewed records of the USS Ogden and Kwajalein Island and noted that the official exposure record or DD 1141 form would be maintained in the Veteran’s medical record; therefore, the center advised it would be prudent to compare that record with this report. The center also advised that the Defense Threat Reduction Agency (DTRA) could have further information regarding service-incurred occupational exposure to radiation relating to the Veteran. In June 2017 the RO forwarded the Veteran’s claims file to DTRA to further evaluate and verify the Veteran’s participation in the claimed radiation risk activity. In a January 2018 letter from DTRA, the agency found the Veteran served on the USS Ogden from February 1977 to January 1979. During this period the ship operated from Kwajalein and Guam, Mariana Islands in support of cleanup efforts at Enewetak Atoll, Marshall Island. DTRA noted that no atmospheric nuclear testing was conducted from 1945 to 1962. DTRA found that review of USS Ogden deck logs confirm that the Veteran was present at Enewetek from April 4 to April 5 and September 19 to September 20 in 1978. DTRA found no record that the Veteran had access or was present in the restricted northern islands of the atoll, and no records of exposure to ionizing radiation. Review of the claims record does not show that the Veteran’s claims file was not referred to the Undersecretary of Health after the January 2018 DTRA letter. In April 2018, the Veteran submitted articles and research relating to radiation and cleanup efforts at Enewetek. In an April 2018 affidavit statement, the Veteran stated that from April 4 to April 5 or September 19 to September 20 in 1978, he and 2 other shipmates at the USS Ogden were instructed to go to another vessel to exchange equipment. The Veteran stated that while waiting to be picked up, he walked on the beach and went swimming, noting that he obeyed signs instructing that swimming be no more than 15 minutes and that he saw no soldiers in hazard gear warning about contaminated areas. The Veteran also stated that he was first treated for skin cancer in 1985 when he had a lump on his neck removed by Kaiser Permanente. In a June 2018 Board remand, the Board found that while the RO pursued development through the Naval Dosimetry Center and DTRA, they did not comply with the July 2016 Board remand instructions to forward the Veteran’s claims file to the Undersecretary for Health. The Board also found the Veteran competent to report the events as stated in his submitted April 2018 affidavit; and with DTRA confirmation, found the Veteran was part of the Enewetak Radiological Survey and Cleanup Project on the USS Ogden. The June 2018 Board remand again instructed that the Veteran’s claims file, along with the Veteran’s April 2018 statements and submitted articles and research, be forwarded to the Undersecretary for Health for preparation of a dose estimate. The Board instructed that if development resulted in a positive dose estimate, the claims file be then forwarded to the Undersecretary for Benefits for consideration under 38 C.F.R. § 3.311 (b). In March 2019 the RO sent a request to the Naval Dosimetry Center for the Veteran’s dosimetry information. A June 2019 email correspondence noted that the Veteran’s claim would be referred to Compensation Service Policy staff for referral to the Undersecretary for Health. In August 2019, a second request was made to the Naval Dosimetry Center. In an August and September 2019 letter, the Naval Dosimetry Center responded that review of the exposure registry by name, service number, command and social security number revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran. Review of the claims record does not show that the Veteran’s claims file was not referred to the Undersecretary of Health after the August and September 2019 Naval Dosimetry Center letter. The Board finds that additional development is warranted before adjudication of the Veteran’s appeal. The Board notes that both the July 2016 and June 2018 Board remand instructed the RO forward the Veteran’s records to the Undersecretary for Health for preparation of a dose estimate pursuant to 38 C.F.R. § 3.311 (a)(2)(iii). Review of the claims record does not show that the Veteran’s claims file has been referred to the Undersecretary of Health for a dose estimate. The Board notes that a July 2019 email correspondence, the RO decision review officer (DRO) stated that the Veteran’s claims file was “not ready to be sent to the Undersecretary for Benefits” for consideration. The email further stated: “BVA remanded for a dose estimate, pursuant to 38 C.F.R. § 3.311 (a)(2)(iii). Stating that if the above-requested development results in a positive dose estimate, then forward the case to the Undersecretary for Benefits for consideration under 38 C.F.R. § 3.311 (b)(1)(iii).” The DRO noted that there was a pending letter to the Naval Dosimetry Center requesting a dose estimate, therefore the DRO opted to wait for a response from the Center before taking any further action. The DRO instructed that with a positive response the next step would be to pursue an advisory medical opinion from the Undersecretary for Health; but with a negative response, to not submit to Compensation Service and to issue a denial via Supplemental Statement of the Case (SSOC). The Board finds it unclear why the DRO did not acknowledge the July 2016 and June 2018 remand instructions to forward the Veteran’s claims file to the Undersecretary of Health for a dose estimate, only referring the claims file to the Naval Dosimetry Center with no further action. The Board’s instruction to do so was not dependent on information having been received by the Naval Dosimetry Center. As such, the Board finds that there has not been substantial compliance with the July 2016 and June 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the Board finds that remand for compliance with the April 2019 Board remand instructions is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records pertinent to the Veteran’s basal cell carcinoma and skin cancer to include the 1985 treatment by Kaiser Permanente and any other medical treatment records from any medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Forward all records concerning the Veteran’s radiation exposure, including any relevant service records, statements or testimony regarding exposure, and any other information obtained, to the Under Secretary for Health for preparation of a radiation dose estimate, to the extent feasible based on the Veteran’s active duty service. (a.) If a specific estimate cannot be made, a range of possible doses should be provided. If more information from the Veteran is required regarding specifics of the Veteran’s alleged exposure, the Veteran should be contacted and asked to provide the information. (b.) Additionally, if the above-requested development results in a positive dose estimate, referral should be made to the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § § 3.311. (c.) All development actions taken, and any determinations made, must be documented in the claims file. 3. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.