Citation Nr: 21068372 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-09 600 DATE: November 10, 2021 REMANDED Entitlement to service connection for kidney cancer, including residuals of ionizing radiation, based upon substitution of the Appellant as the claimant, is remanded. Entitlement to service connection for prostate cancer, including residuals of ionizing radiation, based upon substitution of the Appellant as the claimant, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Marines from March 1952 until March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2014, the matter was remanded for further development and has since returned to the Board. A review of the record shows that the Veteran unfortunately passed in November 2014. Before his death, he had a pending service-connection claim for kidney cancer and prostate cancer. Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant. The revised statute provides that, "if a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under § 5121A of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion." 38 U.S.C. § 5121A (2012). The Board notes that unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant but remains open for submission and development of any pertinent additional evidence. In December 2014, the Veteran's wife reported that the Veteran had passed and requested to be substituted on his behalf. See VA 21-4138 Statement in Support of Claim. In October 2020, the Veteran's daughter indicated that the Veteran's wife had unfortunately passed and requested to be substituted on her behalf. See VA 21-0847 Request for Substitution of Claimant Upon Death of Claimant. In April 2021, the RO recognized the appellant, the Veteran's daughter, as the substitute-claimant in the Veteran's appeal, and she was previously provided notice thereof indicating that she could submit additional evidence. See April 2021 Correspondence. 1. Entitlement to service connection for kidney cancer, including residuals of ionizing radiation, based upon substitution of the Appellant as the claimant 2. Entitlement to service connection for prostate cancer, including residuals of ionizing radiation, based upon substitution of the Appellant as the claimant Although the Board sincerely regrets the additional delay, another remand is necessary to ensure that there is a complete and accurate record upon which to decide the Appellant's claims so that every possible consideration is afforded. The Veteran relayed his belief that his kidney cancer and prostate cancer were related to in-service exposure to ionizing radiation. See August 2012 Notice of Disagreement; August 2013 VA 21-0820; September 2013 VA 21-4138; and February 2014 Form 9. The Veteran also submitted a buddy statement from B.Y., who asserted that he and the Veteran were together at the Nevada Test Site when the atomic bomb was being tested. He could not remember the exact time frame, but believed they were present at the site in approximately April or May of 1952, and that it occurred shortly before they were deployed to Korea. See id. Pursuant to an October 2014 Board Remand, an August 2021 Correspondence from the Defense Threat Reduction Agency (DTRA) noted that the Veteran was not present at the Nevada test site. However, one section indicated that the Veteran, "participated in FRIGID II exercise at an unknown location, from Mar 17 to 27, 1953." The DTRA did not explain what the "FRIGID II exercise" involved, so it cannot be determined whether the exercise may have involved atomic bomb testing. Notably, during the time period noted that the Veteran participated in FRIGID II at an unknown location, nuclear testing was occurring at the Nevada Test Site (March 17, 1953 to June 20, 1953). Also notably, the Veteran's involvement in FRIGID II occurred shortly before his deployment to Korea in May 1953; given that B.Y.'s statement reflected that he and the Veteran were at the Nevada Test Site shortly before going to Korea, further information about FRIGID II may support presence at the Nevada Test Site. Thus, this matter must be remanded in order to develop the Veteran's claim as directed under 38 C.F.R. § 3.311. The matters are REMANDED for the following action: (Please note, this appeal has been advanced by the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expediated handling is requested.) 1. Request any available records concerning the FRIGID II exercise that took place from March 17, 1953 to March 27, 1953. This should also include information on the proximate location(s) of FRIGID II exercise and whether it was within the radius of which participants could have been exposed to ionizing radiation from the Nevada Test Site; or may otherwise reflect exposure to ionizing radiation. If it can be established that the Veteran was not at the Nevada Test Site from March 17, 1953 to March 27, 1953, it should be explicitly stated. If the requested record is not available or the search for information on the FRIGID II exercise yields negative results, it should be explicitly stated. 2. If it is determined that the Veteran was present at the Nevada Test Site during the FRIGID II exercise, forward the Veteran's claims file to the VA Undersecretary for Health (or designee) for a dose estimate, to the extent feasible, based on available methodologies. (Continued on the next page) 3. If the above-requested development results in a positive dose estimate, refer the claim to the Under Secretary for Benefits (or designee) for consideration under 38 C.F.R. § 3.311(c), to include an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's kidney and/or prostate cancer was caused by ionizing radiation exposure in service. A rationale should be provided for the conclusions reached. 4. After completion of the above development, the issue of entitlement to service connection for kidney and prostate cancer should be readjudicated. If the determination remains adverse to the Appellant, she must be furnished with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kim, 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.