Citation Nr: 20036424 Decision Date: 05/27/20 Archive Date: 05/27/20 DOCKET NO. 14-07 554 DATE: May 27, 2020 REMANDED Entitlement to service connection for prostate cancer, claimed as the result of exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1970 to December 1971 and from April 1972 to September 1994. He also served in the Reserves from December 1971 to April 1972. In August 2017, he testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Veteran claims that he developed prostate cancer as a result of his exposure to radiation during active duty service. In his written statements, he has explained that he was exposed to radiation when operating x-ray machines during his work as a dental assistant. His service personnel records confirm his work as a dental assistant and include at least some documentation describing the degree of his occupational exposure to radiation. In January 2018, the Board denied service connection for prostate cancer. The Board’s decision relied on radiation exposure records provided by the Army Dosimetry Center and on advisory medical opinions from the Under Secretary of Health and the Director of Compensation Service, both issued in July 2011. Both opinions, in turn, relied on the radiation exposure information previously provided by the Army Dosimetry Center. After further proceedings before the United States Court of Appeals for Veterans Claims (Court), counsel for both parties filed a Joint Motion for Partial Remand (JMR) in November 2018, in which they agreed that the Board erred in relying on these opinions because, when it provided information to the Army Dosimetry Center concerning the scope of the Veteran’s active duty service, the Agency of Original Jurisdiction (AOJ) indicated periods of service between April 1970 and December 1971 and between October 1976 and September 1994, neglecting the period of active duty service from April 1972 and October 1976 and reserve service between December 1971 and April 1972. When it granted the parties’ JMR in December 2018, the Court vacated the denial of service connection for prostate cancer and remanded that claim back to the Board. In May 2019, the Board remanded the prostate cancer claim with instructions designed to remedy the weakness identified in the JMR. These orders required the AOJ to seek “all evidence related to exposure to ionizing radiation for this Veteran from April 1970 to September 1994, to include all DD Form 1141, any other reports of exposure to ionizing radiation, any outstanding service treatment records or other in-service records containing radiation exposure information, records from the Army Dosimetry Center, and any other records pertaining to exposure to ionizing radiation for this Veteran from 1970 to 1994.” The Board further instructed the AOJ, after completing this development, to obtain an opinion from the appropriate Under Secretary, as required by 38 C.F.R. § 3.311. On remand, the AOJ requested service treatment and personnel records using the Personnel Information Exchange System (PIES). The scope of this request included the period of active duty service which was left out of the earlier letter to the Army Dosimetry Center but did not request information concerning the period of reserve service between December 1971 and April 1972. In August 2019, the AOJ also mailed a new letter to the Army Dosimetry Center with apparently correct information about the Veteran’s periods of service. The Army Dosimetry Center replied to indicate that the request was “halted and should be forwarded to the Jackson MS office for further processing.” The AOJ mailed a follow-up request to the Army Dosimetry Center in December 2019. But there is no evidence that the AOJ attempted to forward the case to the Jackson, Mississippi Regional Office, as the Dosimetry Center had suggested. Nor did the follow-up letter attempt to explain to the Army Dosimetry Center that the AOJ was attempting to correct problems with an earlier request, to which the Center had responded previously, but which had been compromised by the incompleteness of the service history information provided to the Center by the AOJ. Without further attempts to obtain radiation exposure information and without seeking a new advisory opinion pursuant to 38 C.F.R. § 3.311, the AOJ issued a supplemental statement of the case (SSOC), denying service connection for prostate cancer, and returned this case to the Board. Although the Board regrets the need for further delay, it is necessary to remand this case again to ensure compliance with its May 2019 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the AOJ should obtain complete radiation information from the Army Dosimetry Center – if necessary, by working with the VA Regional Office in Jackson, Mississippi. The AOJ should then proceed with all other development required by 38 C.F.R. § 3.311, including a new request for an advisory opinion. The matters are REMANDED for the following action: 1. The AOJ should write to the Army Dosimetry Center, or other appropriate information repository, to obtain complete information concerning the extent of the Veteran’s radiation exposure during service. The AOJ’s letter requesting this information should explain that, in 2011, the Army Dosimetry Center provided documentary evidence concerning this Veteran’s exposure to radiation. The letter should further explain that, unfortunately, the AOJ’s initial request for radiation exposure information neglected to inform the Army Dosimetry Center that, in addition to serving on active duty from April 1970 to December 1971 and from October 1976 to September 1994, the Veteran also served in the Reserves from December 1971 to April 1972 and on active duty from April 1972 to October 1976. Because the earlier radiation exposure information provided by the Army Dosimetry Center was apparently based on incomplete assumptions concerning the length of the Veteran’s service, it would be very helpful to the Veteran and to VA if the Army Dosimetry Center would undertake a new search for radiation exposure information based on the correct service periods. IF THE ARMY DOSIMETRY CENTER RESPONDS TO THIS REQUEST BY SUGGESTING THAT THE AOJ SHOULD FORWARD THE CASE TO ANOTHER AGENCY OF ORIGINAL JURISDICITON, SUCH AS THE VA REGIONAL OFFICE IN JACKSON, MISSISSIPPI, THE AOJ SHOULD DO SO. The AOJ should also make a new request using the PIES System for any radiation exposure information related to the Veteran’s Reserve service between December 1971 and April 1972. 2. After completing the development required above, to the extent possible, the AOJ should request a new opinion from the appropriate Under Secretary concerning the claim for service connection for prostate cancer and proceed with any other development required by 38 C.F.R. § 3.311. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye Counsel 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.