Citation Nr: 21068858 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 13-13 873 DATE: November 15, 2021 REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for colon cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for bladder cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for kidney cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for skin cancer, to include as due to exposure to ionizing radiation and excessive sun exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1948 to September 1940 and from October 1950 to August 1951. The Veteran passed away in March 2019 during the pendency of this appeal. The RO granted substitution in June 2019 to the Veteran's surviving spouse, who is now the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran and his wife testified before the undersigned Veterans Law Judge during a February 2014 hearing. A transcript of the hearing is associated with the Veteran's claim file. 1. Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation, is remanded. 2. Entitlement to service connection for colon cancer, to include as due to exposure to ionizing radiation, is remanded. 3. Entitlement to service connection for bladder cancer, to include as due to exposure to ionizing radiation, is remanded. 4. Entitlement to service connection for kidney cancer, to include as due to exposure to ionizing radiation, is remanded. 5. Entitlement to service connection for skin cancer, to include as due to exposure to ionizing radiation and excessive sun exposure, is remanded. When this matter was last before the Board in March 2021, it was remanded for several reasons: (1) to obtain VA treatment records for the period from 1951 from the Allen Park VAMC, Melvindale VA Clinic, and Gaylord CBOC; (2) to obtain any additional records that may further document the Veteran's exposure to ionizing radiation, to include requesting from the Army Dosimetry Center whether the Veteran had any radiation exposure during his stopover in Shemya; (3) forward the Veteran's record to the VA Under Secretary for Health, pursuant to 38 C.F.R. § 3.311 (a)(2)(iii), for the preparation of a dose estimate; (4) if it is determined that the Veteran was exposed to any amount of radiation during service, forward the case to the VA Under Secretary for Benefits to obtain an opinion; and (5) to obtain an addendum opinion that addresses whether the Veteran's cancers were caused by or related to the Veteran's service and/or events therein. Unfortunately, there has not been substantial compliance with the March 2021 remand directives. First, as to any outstanding VA treatment records, it appears that some effort was undertaken to obtain the records. To that extent, the claims file shows what appears to be requests for outstanding VA treatment records, sent to VAMCs in Detroit, Saginaw, and Ann Arbor, in March, June, and July 2021. Correspondences from March and July 2021 indicate that no such treatment records could be located from VAMC Ann Arbor. The status of the requests sent to the Detroit and Saginaw VAMCs is unclear. Notably, the AOJ was instructed that if the outstanding records could not be obtained after reasonable efforts have been made, then to issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. As no such formal determination was issued and to ensure that all necessary efforts have been undertaken to obtain the records, a remand is necessary. Second, while the AOJ complied with the remand directives regarding the development of the Veteran's claimed radiation exposure during service, the AOJ failed to obtain an addendum opinion addressing whether the Veteran's cancers were caused by or related to the Veteran's service and/or events therein. In this case, even if it is determined that there is no evidence of radiation exposure during service, service connection may still be warranted on a direct basis, if it is found that the conditions were otherwise related to active service. Thus, remand is also necessary to obtain the requested addendum opinion. The matters are REMANDED for the following action: 1. Obtain VA treatment records for the period from 1951 from the Allen Park VAMC, Melvindale VA Clinic, and Gaylord CBOC. All reasonable attempts should be made to obtain these records and must be documented in the record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38U.S.C. § 5103A(b)(2) and 38 C.F.R. §3.159(e). 2. After development of the above, obtain a VA addendum medical opinion from the VA provider who issued the September 2020 medical opinion (or if no longer available, an appropriate replacement) to address the claim for the various cancers. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner is requested to provide the following opinion: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's bladder cancer, kidney cancer, prostate cancer, colon cancer, and skin cancer is caused by or related to the Veteran's service and/or events therein, to specifically include his exposure to ionizing radiation in service and in conjunction with the skin cancer claim, to include hazardous sun exposure in Korea? The examiner must address the Veteran's testimony that he believed his cancers were due to his time in Hiroshima and Shemyain the Aleutian Islands. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.