Citation Nr: 21062590 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 10-28 240 DATE: October 8, 2021 REMANDED Entitlement to service connection for a left foot disorder, to include as due to radiation exposure is remanded. Entitlement to service connection for a right foot disorder, to include as due to radiation exposure is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1962 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case has a long procedural history. The Veteran appeared at an April 2011 Board hearing and testified before a Veterans Law Judge (VLJ). In June 2012, the Veteran was informed that the VLJ who conducted the April 2011 Board hearing was no longer employed by the Board and he was offered another Board hearing. However, the Veteran did not request a new hearing. This claim was most recently remanded by the Board in November 2019 for further development, to include obtaining updated treatment records and documents corroborating the Veteran's claimed exposure to radiation. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a left foot disorder, to include as due to radiation exposure is remanded. 2. Entitlement to service connection for a right foot disorder, to include as due to radiation exposure is remanded. The March 2014, July 2016, and November 2019 Board remands directed that the RO undertake all development required under 38 C.F.R. § 3.311, to include forwarding the Veteran's claims file and records to the Under Secretary for Health for preparation of a dose estimate. On remand, the evidence was not sent to the Under Secretary for Health for a dose estimate as directed by the previous Board remands. Therefore, remand is required for compliance with the prior remand directives. Stegall, supra. The Board notes for clarity that referral to the Under Secretary for Health and referral to the Under Secretary for Benefits are two distinct steps of development under 38 C.F.R. § 3.311. Here, the Board notes that the RO indicated in the July 2021 supplemental statement of the case that referral to the Under Secretary for Benefits was not required as the RO found no evidence of radiation risk activity in service. However, before the RO can decide whether to refer to case to the Under Secretary for Benefits, the RO must first forward all records obtained regarding radiation dose in service to the Under Secretary of Health for preparation of a dose estimate pursuant to § 3.311(a)(2)(iii). Referral to the Under Secretary of Health is not discretionary under § 3.311(a)(2)(iii). Here, in a March 2018 Memorandum, the RO sent the Director of Compensation Services a request for radiation review. However, review of the record does not show that a radiation review was conducted. Therefore, remand is necessary for completion of this evidentiary development. The matters are REMANDED for the following action: 1. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the Veteran's records concerning his radiation exposure -including any service records, his statements and testimony regarding radiation exposure, and any other information obtained while the case is in Remand status to VA's Under Secretary for Health, or its designee, as is appropriate, for preparation of a dose estimate, to the extent feasible, based on the Veteran's statements that: 1) he was a strike team leader; 2) that he was in the middle of launch pads with nuclear war heads; 3) that he was exposed to radiation that was stored in bunkers; and 4) that his MOS duties included security and handling the upper and lower combinations of each missile sites. If a specific estimate cannot be made, a range of possible doses should be provided. The resulting dose estimate must include consideration of the Veteran's diagnosis of prostate cancer. (Continued on next page) 2. If the above-requested development results in a positive dose estimate, the claim must be referred to the Under Secretary for Benefits (or designee) for consideration under 38 C.F.R. § 3.311(c). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, Associate 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.