Citation Nr: 20042476 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 14-10 627A DATE: June 24, 2020 REMANDED Entitlement to service connection for prostate cancer and residuals thereof is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to January 1966. This appeal comes to the Board of Veterans’ Appeals (Board) from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In April 2018, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) in order to obtain an adequate examination of the Veteran’s prostate cancer and to ensure that VA has completed the proper development procedures for developing claims involving radiogenic diseases under 38 C.F.R. § 3.311. The record contains conflicting information as to whether the Veteran’s radiation exposures (including a total lifetime ionizing radiation exposure of .568 rem documented on a DD Form 1141) are at least as likely as not a cause of cancer generally. However, in a March 2013 decision, the Board accepted a March 2012 opinion from a nurse practitioner and a medical doctor specializing in endocrinology linking the Veteran’s radiation exposures to the development of his thyroid nodules, which the opinion indicates may develop into cancer. The Board granted the Veteran entitlement to service connection for his thyroid nodules based on the opinion regarding the thyroid nodules and cancer generally. However, as the record lacked an opinion that specifically addressed evidence of ionizing radiation exposure in relationship to the Veteran’s prostate cancer, the Board instructed the AOJ to obtain one in April 2018. The Board emphasized that the AOJ should obtain an opinion from an oncologist to consider the relationship between the various radiation exposures and the development of the Veteran’s prostate cancer after referring the matter to the Under Secretary of Benefits. Upon review of the record, the Board finds the AOJ must conduct additional development to ensure there is substantial compliance with the Board’s April 2018 remand directives and to resolve conflicting medical opinion evidence. While the Board emphasized in its remand order that the AOJ must obtain an opinion from an “oncologist”, the AOJ obtained a February 2020 opinion from a doctor practicing internal medicine instead because the contractor that VA hired to provide the examiners indicated that an oncologist was not available at the time. See December 2019 Exam Scheduling Request Clarification Response. Moreover, the internal medicine doctor’s opinion indicates generally that the Veteran’s radiation exposures were insufficient to cause cancer, which is inconsistent with the March 2012 opinion previously accepted by the Board in support of granting of the Veteran’s thyroid nodule claim. An opinion from with supporting rationale that focuses on the Veteran’s prostate cancer specifically rather than cancer generally will assist the Board in resolving the conflict between the opinions from doctors of other specialties. On remand, the AOJ should submit the claims file including the radiation dose estimates for a medical opinion on whether it is at least as likely as not that the Veteran’s exposure to radiation or other events during his military service caused his prostate cancer. The AOJ should ensure that the oncologist considers the Veteran’s lay statements about the history of his disability and his duties during his military service in the context of the radiation exposure history, treatment records, and pertinent medical literature. The AOJ should ensure the rationale the oncologist provides addresses prostate cancer specifically rather than cancer generally. After associating the oncologist’s opinion with the Veteran’s claims file, the AOJ should refer this matter to the Under Secretary of Benefits in accordance with the procedures under 38 C.F.R. § 3.311(b)(1). After ensuring that all development requested by the Board is complete, the AOJ should readjudicate the claim and issue a Supplemental Statement of the Case if it denies the claim. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. The AOJ should submit the claims file including the radiation dose estimates to an oncologist and request the expert opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s exposure to radiation or other events during his military service caused his prostate cancer. The AOJ should ensure that the oncologist considers the Veteran’s lay statements about the history of his disability and his duties during his military service in the context of the radiation exposure history, treatment records, and pertinent medical literature. The AOJ should ensure the rationale provided focuses on prostate cancer specifically rather than cancer generally. If the medical expert is unable to provide an opinion on these matters, the expert must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the expert (does not have the knowledge or training). 3. After associating the medical opinion with the Veteran’s claims file, the AOJ should refer this matter to the Under Secretary of Benefits in accordance with the procedures under 38 C.F.R. § 3.311(b)(1). 4. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.