Citation Nr: 21000447
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 15-01 714A
DATE: January 5, 2021

REMANDED

The claim of entitlement to service connection for lung cancer is remanded.

The claim of entitlement to service connection for brain cancer is remanded.

The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1974 to March 1977.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).  In February 2018, the Veteran testified in a hearing before the Board.  A transcript of the hearing has been included in the electronic record and has been reviewed.  

The Board denied the claims on appeal in a September 2018 decision the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court).  In May 2019, pursuant to a joint motion for partial remand, the Court vacated the decision and remanded the claims for further consideration.  In response, in December 2019, the Board remanded the matter for additional development.  The case is again before the Board for appellate review.

Another remand is necessary for development pursuant to 38 C.F.R. § 3.311.  As noted in the December 2019 remand, development must be conducted to determine whether the Veteran’s duties as a Pershing Missile Crewman during active duty led to ionizing radiation exposure that may have led to lung and brain cancer.           See 38 C.F.R. § 3.311 and the VA Adjudication Procedures Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section C.  The record does not indicate that the necessary development has been conducted.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding veterans are entitled to compliance with Board remand instructions).   

Moreover, inasmuch as the claim for a TDIU is intertwined with the claims regarding cancer, it must be remanded as well.  See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (the appropriate remedy when a pending claim is inextricably intertwined with a claim on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim).

The matters are REMANDED for the following action:

1. Forward all relevant documents regarding the Veteran’s duties as a Pershing Missile Crewman, and his possible exposure to ionizing radiation, to the Under Secretary of Health for preparation of a dose estimate pursuant to 38 C.F.R. § 3.311(a).  

2. Then forward the Veteran’s claims seeking service connection for lung and brain cancer to the Under Secretary of Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c).  All relevant evidence should be reviewed including the lay statement dated in February 2020 and the testimony before the Board in February 2018.  

3. Readjudicate the claims on appeal once the foregoing development has been completed.  Ensure that the claims of entitlement to service connection are addressed under 38 C.F.R. § 3.303 in addition to 38 C.F.R. § 3.311.  

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Christopher McEntee, 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.