Citation Nr: 21061410 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-29 473 DATE: October 4, 2021 REMANDED Entitlement to service connection for bladder cancer, to include as due to ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 1962 to September 1965. In July 2015, the Veteran appeared at a personal hearing at the RO. In September 2019, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. In October 2019, the Board remanded this appeal for further development. In the October 2019 remand, the Board indicated that the Veteran's bladder cancer was a radiogenic disease under 38 C.F.R. § 3.311(b)(2), and that it did not appear to have been properly developed, to include obtaining a dose estimate, pursuant to the provisions of 38 C.F.R. § 3.311(a). As such, upon remand, the Board indicated that, in part, the RO was to undertake all steps necessary for review and action pursuant to 38 C.F.R. § 3.311, to include obtaining a dose estimate. Pursuant to the October 2019 Board remand, the RO contacted the U.S. Department of Energy, National Nuclear Security Administration, Nevada Site Office, on several occasions. In a September 2020 response, the Nevada National NNSS Security Site, indicated that a Master File search of dosimetry records had been conducted for records pertaining to the Veteran, beginning with when he was eighteen years of age. The, the Nevada National NNSS Security Site, stated that the record of radiation dose for the Veteran is shown in an enclosed Form NFO-185, Radiation Exposure History. A Form NFO-185, U.S. Department of Energy, National Nuclear Security Administration, Nevada Field Office, Radiation Exposure Report, received in September 2020, indicates that the Veteran had a total whole-body dose of 0 mrem. The Board observes that the Radiation Exposure Report, received in September 2020, is, essentially, the same document as a Radiation Exposure Report, already of record in September 2017. In the October 2019 remand, the Board specifically indicated that such statement was not a dose estimate from the Under Secretary of Health, pursuant to 38 C.F.R. § 3.311. The Board observes that the RO appears to have developed the Veteran's case as a participation claim in an atmospheric nuclear weapons test. The Board notes, however, that February 2014 statement from the Defense Threat Reduction Agency, United States Strategic Command, Center for Combating Weapons of Mass Destruction (Defense Threat Reduction Agency) reflects that in April 1963, the Veteran was assigned to TDY with the U.S. Naval Radiological Defense Laboratory, San Francisco, California, and to the Camp Mercury, Nevada at the Nevada Test Site. The Defense Threat Reduction Agency stated that the Veteran's service records contain a certificate from the Department of the Navy indicating that he successfully completed a special four-day course in radiation monitoring in April 1963. The Defense Threat Reduction Agency noted that the Veteran's TDY occurred after the six-month post-operational period for Operation DOMINIC II, and that his presence at the Nevada Test Site in April 1963 and May 1963 was not related to atmospheric nuclear testing. The Defense Threat Reduction Agency indicated that after a search of available dosimetry data, no record of radiation exposure was found for the Veteran. The Defense Threat Reduction Agency stated that, in summary, historical records did not document the Veteran's participation in U.S. atmospheric testing as defined by VA. The Board observes, therefore, as it does not appear that the Veteran participated in U.S. atmospheric testing, the Veteran's claim has not been properly developed, to include obtaining a dose estimate, from the Under Secretary of Health, pursuant to the provisions of 38 C.F.R. § 3.311(a)(2)(iii). A remand by the Board confers upon a Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the development requested pursuant to the October 2019 Board remand has not been substantially accomplished. The RO did not fully develop the Veteran's claim as necessary in accordance with the provisions of 38 C.F.R. § 3.311(a)(2)(iii). Therefore, the Board finds it necessary to again remand this appeal to undertake all steps necessary for review and action pursuant to 38 C. F.R. § 3.311, to include obtaining a dose estimate, from the Undersecretary of Health. The matters are REMANDED for the following action: The RO should develop the Veteran's claim as necessary in accordance with the provisions of 38 C.F.R. § 3.311(a)(2)(iii). The RO should specifically undertake all steps necessary for review and action pursuant to 38 § 3.311, to include obtaining a dose estimate from the Undersecretary of Health. (Continued on the next page) The RO should document all actions that are taken and any determinations that are made. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. D. Regan, 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.