Citation Nr: 21004390 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-36 987 DATE: January 27, 2021 REMANDED Entitlement to service connection for prostate cancer residuals is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1976 to May 1998 including service in Southwest Asia from December 17, 1990 to May 2, 1991. He is in receipt of multiple commendations, to include the Bronze Star. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 Regional Office (RO) rating decision which denied service connection for residuals of prostate cancer. In April 2018, the Board remanded the matter to the RO for further development and adjudicative action including requesting relevant medical records identified by the Veteran. This case was last before the Board in June 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. Entitlement to service connection for prostate cancer residuals is remanded. As noted in the prior June 2020 Board remand, the Veteran asserts entitlement to service connection for prostate cancer residuals under various different theories. The case was previously remanded to ensure the RO properly developed all the differing theories. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure compliance with the prior remand. In particular, the Veteran contends his prostate cancer residuals are either related to his Gulf War service, his contended in-service radiation exposure, or, alternatively, caused or aggravated by his service-connected thyroid disability. On remand, the RO provided the Veteran a VA examination that opined as to these various theories, but the development pursuant to 38 C.F.R. § 3.311 for radiogenic diseases was not done. Prostate cancer is a radiogenic disease under 38 C.F.R. § 3.311(b)(2). As explained in the Board’s June 2020 remand, 38 C.F.R. § 3.311 provides specific instructions for the development of claims based on exposure to ionizing radiation. The regulation requires that a radiation dose assessment be completed if a radiogenic disease first became manifest after service; the radiogenic disease was not manifest to a compensable degree within the presumptive periods specified in either 38 C.F.R. §§ 3.307 or 3.309; and the claimant contends that the disease is a result of ionizing radiation in service. In other words, there is no prerequisite in the regulation that the in-service radiation be objectively substantiated before obtaining a dose assessment. Rather, under the development procedures required by 38 C.F.R. § 3.311, VA must request any records concerning the Veteran’s exposure to radiation. Then, “[a]ll such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies.” 38 C.F.R. § 3.311(a)(2)(iii). Although the AOJ provided the Veteran a Radiation Risk Activity Information Sheet in June 2020, which the Veteran submitted in July 2020 with additional personnel records, there is nothing in the record indicating that the information collected by the AOJ was forwarded to the Under Secretary for Health for preparation of a dose estimate. To comply with the regulation, a remand is required. The matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, forward all available records concerning the Veteran’s exposure to radiation to the Under Secretary for Health, who is responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies, pursuant to 38 C.F.R. § 3.311(a)(2)(iii). In preparing a dose estimate, the Under Secretary for Health should be asked to consider the Veteran’s lay statements relative to his exposure. If the dose estimate provided by the Under Secretary for Health is greater than zero, arrangements should be made to forward the claims file to the Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c) & (e). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.