Citation Nr: 21000244 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 05-35 745 DATE: January 4, 2021 REMANDED Service connection for endocrine cancer (metastatic carcinoid) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1984 to February 1988. In July 2009 the Board denied a claim for service connection for endocrine cancer, to include as secondary to in-service radiation exposure. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2009 Joint Motion to Vacate and Remand, the Secretary of VA and the Veteran, through his representative, jointly moved that the July 2009 Board decision be vacated and remanded. The Court granted the joint motion in December 2009. The Board remanded the claim in June 2010 for development consistent with the joint motion. In March 2006, the Veteran testified before a Veterans Law Judge (VLJ), other than the undersigned, sitting at the RO in a Travel Board hearing. The VLJ who presided at the March 2006 Board hearing is no longer employed at the Board. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision on that appeal. 38 U.S.C. § 7107 (c) (2012); 38 C.F.R. § 20.707 (2017). Accordingly, the Veteran was sent a letter offering him another hearing before the Board. The Veteran indicated in a February 2016 response that he wanted another Board hearing, and wanted the hearing to be an in-person hearing at his local VA RO. The Board remanded the claim again in May 2016 to schedule a Board hearing. In May 2018, a Travel Board hearing was held before the undersigned; a transcript is of record. These matters came before the Board in November 2018 and were once again remanded for further development. Service connection for endocrine cancer (metastatic carcinoid) is remanded. Pursuant to the November 2018 remand order and 38 C.F.R. § 3.311(a)(2)(iii), the RO should have forwarded pertinent records to the Under Secretary for Health to prepare a dose estimate, to the extent feasible. It does not appear that this occurred in the instant case. In making a determination, the Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary for Health. 38 C.F.R. § 3.311 (c). If the Under Secretary for Benefits cannot make a determination, the claim may be referred for consideration to an outside consultant, who is to provide a medical opinion using criteria established in 38 C.F.R. § 3.311 (d). See 38 C.F.R. § 3.311 (c)(2). Accordingly, a remand is necessary in this case for the AOJ to properly develop this case under the provisions of 38 C.F.R. § 3.311, and to ensure compliance with the Board’s previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Contact all appropriate records repositories to request copies of any additional service treatment and personnel records, to include any Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). See 38 C.F.R. § 3.311 (a)(2)(iii). In particular, the Veteran asserts that he was exposed to radiation when he served in Giessen, Germany at the time of the Chernobyl Nuclear Power Plant accident in 1986. The Veteran testified being able to see a black cloud over the city.” See VBMS entry with document type, “Hearing Transcript,” receipt date 5/22/2018. 2. Then, in accordance with 38 C.F.R. § 3.311 (b)(2), the case should be referred to the VA Under Secretary for Health, for preparation of a radiation dose estimate. 3. After a dose estimate has been provided by the VA Under Secretary for Health, the case should be forwarded to the VA Under Secretary for Benefits to obtain an opinion as any relationship between the Veteran’s endocrine cancer (metastatic carcinoid) and in-service radiation exposure. 4. Thereafter, afford the Veteran a VA examination for his endocrine cancer (metastatic carcinoid). Based on a full review of the record, please opine as to the following: a. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s endocrine cancer (metastatic carcinoid) had an onset during service or within one year of service, or is causally related to his military service, to include as due to exposure to radiation during service? A detailed explanation (rationale) is requested for all opinions provided, citing supporting clinical data and/or medical literature, as appropriate. If it is not possible to provide the requested opinions without resort to speculation, the examiner should explain why that is so. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.