Citation Nr: 20038074 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 18-24 538 DATE: June 3, 2020 REMANDED Entitlement to service connection for prostate cancer as due to radiation exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1960 to July 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a May 2020 hearing. The Veteran seeks service connection for prostate cancer, which he contends is due to his confirmed exposure to radiation while participating in Operation DOMINIC I, a series of atmospheric nuclear test series in 1962. Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by established in three ways. First, if a Veteran exposed to radiation during active duty later develops one of the diseases listed in 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; 38 C.F.R. §§ 3.307, 3.309. The list under 38 C.F.R. § 3.309(d)(2), however, 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 a direct medical connection between the claimed condition and exposure to ionizing radiation during service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.311, where a Veteran develops a radiogenic disease such as prostate cancer more than five years after exposure to ionizing radiation, the claim must be forwarded for review by the Under Secretary for Benefits. 38 C.F.R. § 3.311(d). In this case, the record reflects that the Veteran currently has prostate cancer, which was diagnosed more than five years after service. The Veteran’s claim, however, has not yet been reviewed by the VA Under Secretary for Benefits. Accordingly, the Board must remand for that procedural development. Id. The Board also notes that while an October 2016 letter from the Defense Threat Reduction Agency offered an estimate of the size and nature of the radiation dose for atmospheric nuclear tests, the Veteran stated that he was later sent back to Johnson Island and participated in a surface-level nuclear test. Because it is unclear whether the Veteran has been afforded an assessment as to the size and nature of the radiation dose for this second test, the Board will direct for that development as well. 38 C.F.R. § 3.311(a)(1). Accordingly, the matter is REMANDED for the following action: 1. Undertake appropriate action to obtain an assessment as to the size and nature of the radiation doses the Veteran received during service, to include both the atmospheric test in July 1962 and the surface-level test several weeks later, plus the Veteran’s exposure to the helicopters that retrieved the nuclear testing devices. If the assessment treats all of these exposures under the umbrella of “participation in Operation DOMINIC I,” then it must specifically state so. 2. Forward the case to the VA Under Secretary for Benefits to obtain an opinion as to whether it is at least as likely as not that the Veteran’s prostate cancer resulted from any exposure to ionizing radiation during the Veteran’s service. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, Associate 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.