Citation Nr: 21003277 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-20 805 DATE: January 21, 2021 REMANDED Entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure, is remanded. Entitlement to service connection for ocular melanoma, left eye, to include as due to ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1952 to January 1956. In February 2016, the Veteran filed a claim for service connection for prostate cancer and eye melanoma, both due to in-service radiation exposure. In October 2016, the Defense Threat Reduction Agency (DTRA) confirmed that the Veteran was a participant of Operation CASTLE and provided a radiation dose assessment using an expedited methodology based on worst-case doses. In December 2016, the Director of Compensation Benefits (USB) requested an opinion from the Under Secretary for Health (USH) to determine whether it is likely, unlikely, or as likely as not that the Veteran’s ocular melanoma and prostate cancer resulted from exposure to radiation in service. On February 13, 2017, the Director, Post-9/11 Environmental Health Service opined that it was unlikely that the Veteran’s prostate cancer and/or ocular melanoma were caused by exposure to ionizing radiation while in miliary service. On February 14, 2017, and based on the opinion provided on behalf of the Under Secretary of Health, USB determined that there was no reasonable possibility that the Veteran’s prostate cancer or ocular melanoma resulted from radiation exposure in service. In January 2019 and based on the medical opinions, the Board denied the Veteran’s claim for entitlement to service connection for prostate cancer and left eye ocular melanoma. However, in June 2020, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision vacating the Board’s decision and remanding the claim for further development. The Court concluded that the Board relied on an inadequate medical opinion to deny service connection. The Court stated that it was unclear whether the advisory medical opinion from the USH considered the factors listed in 38 C.F.R. § 3.311(e). The Court stated that USB “is not explicitly required to refer to the factors listed in § 3.311(e), but should, rather, consult those factors as a point of reference when making recommendations to VA. The Court further stated that it does not appear that USB consulted the factors in providing the negative nexus opinion. Instead, the examiner wholly adopted the USH findings that also did not discuss these factors. As the Court was unable to verify whether USB considered the factors, the Court remanded the claim for further development. Considering the Court’s findings, the Board finds that the agency of original jurisdiction (AOJ) should obtain a new opinion from the Director of Compensation Benefits to ascertain whether the Veteran’s ocular melanoma and prostate cancer resulted from his in-service exposure to radiation. The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA and private treatment records with the claims file. 2. Then, the AOJ should refer the issues to the Under Secretary for Benefits for consideration pursuant to 38 C.F.R. § 3.311(c). The Under Secretary for Benefits should consider the claim and the factors specified in 38 C.F.R. § 3.311(e). 3. Then, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.