Citation Nr: 21075944 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 17-46 537 DATE: December 22, 2021 REMANDED Entitlement to service connection for bladder cancer, including as due to in-service ionizing radiation exposure, is remanded. Entitlement to service connection for prostate cancer, including as due to in-service ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran had active service from January 1951 to January 1953. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A videoconference Board hearing was held in July 2018 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. In October 2020 correspondence, the Veteran was informed that the Veterans Law Judge who held this hearing was no longer able to participate in his appeal and offered him the opportunity for another hearing before a different Veterans Law Judge. There is no record of a response. Thus, the Veteran's hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2020). In January 2021, the Board remanded this appeal to the RO for additional development. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Veteran essentially contends that he incurred bladder cancer and prostate cancer during active service. He specifically contends that in-service ionizing radiation exposure while stationed in Japan caused or contributed to his current bladder cancer and prostate cancer. Unfortunately, a review of the record evidence shows that the RO did not comply substantially with the terms of the Board's January 2021 remand and another remand of these claims is required. In the January 2021 remand, the Board directed the RO to obtain radiation dose information from the relevant Federal records repository and then forward this information to VA's Undersecretary for Health for preparation of a radiation dose estimate pursuant to 38 C.F.R. § 3.311. Once a radiation dose estimate is prepared by VA's Undersecretary for Health (or his or her designee), then the claim is forwarded to VA's Undersecretary for Benefits for consideration. See generally 38 C.F.R. § 3.311 (2020). The Board acknowledges that, following this remand, the RO sent several letters to different U.S. Army commands in an attempt to obtain information regarding the Veteran's radiation dose estimate. There appears to be some confusion in the record about the appropriate Federal records repository to request radiation dose estimates and the mailing address/es for these facilities as several letters were returned as undeliverable by the postal service. Nevertheless, the U.S. Army Dosimetry Center responded to the RO in June and in September 2021 with separate letters stating that they were unable to find any records documenting ionizing radiation exposure for the Veteran. After receiving these responses, it appears that the RO promulgated a supplemental statement of the case (SSOC) in October 2021 in which it determined that service connection for bladder cancer and prostate cancer were denied as there was no evidence of in-service ionizing radiation exposure according to the U.S. Army Dosimetry Center. In promulgating an October 2021 SSOC in which it determined that service connection for bladder cancer and prostate cancer were denied as there was no evidence of in-service ionizing radiation exposure according to the U.S. Army Dosimetry Center, the RO either overlooked or ignored a response from the U.S. Army Public Health Center which also was received by VA in August 2021. This Federal record repository notified VA in its August 2021 response that a review of records in the Veterans' Radiation Exposure Investigation Program (VREIP) provided a reconstructed dose estimate for the Veteran of 10 millisieverts (1000 millirem) based on external radiation exposure over his entire period of active service from January 1951 to January 1953. Thus, it was error for the RO to conclude in the October 2021 SSOC that, because there was no information regarding the Veteran's radiation dose exposure, forwarding this claim to VA's Undersecretary for Benefits was not required. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO to re-certify this appeal to the Board without complying with the prior remand instructions. Given this error, another remand is required. The Board finds that, on remand, this claim should be forwarded to VA's Undersecretary for Benefits for action consistent with 38 C.F.R. § 3.311. Id. The Board also notes that, although he contends that in-service ionizing radiation exposure caused or contributed to his disabilities, the Veteran is not precluded from establishing service connection for bladder cancer and prostate cancer on a direct basis. See 38 C.F.R. §§ 3.303, 3.304. The record evidence shows that his attorney submitted a medical opinion from E. P., M.D., a private clinician, dated in March 2020 in which this clinician purported to relate his bladder cancer to active service. Dr. E. P. opined, "It is highly possible that during [the Veteran's active service] he may have been exposed to harmful chemicals that may have caused long-term detrimental effects on his body. The exposure may have certainly caused his current bladder cancer." The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). This opinion also appears to be based on an inaccurate factual premise, i.e., that the Veteran was exposed to (unidentified) harmful chemicals during active service. See, for example, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (finding medical opinion based upon inaccurate factual premise not probative). Accordingly, even if the March 2020 opinion from Dr. E. P. is viewed in the light most favorable to the Veteran, this evidence does not establish service connection for bladder cancer on a direct basis. To date, although he has been diagnosed as having and treated for bladder cancer and prostate cancer in the decades since his service separation, a VA clinician has not been asked to provide opinions as to the nature and etiology of either of these disabilities. Thus, the Board finds that, on remand, opinions should be obtained which address this matter. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. As requested in the Board's January 2021 remand, forward this claim, along with the Veteran's radiation dose estimate provided by the U.S. Army Public Health Center in August 2021, to VA's Undersecretary for Benefits for action consistent with 38 C.F.R. § 3.311(c). A copy of any request(s) sent to the Undersecretary for Benefits, and any response(s), should be associated with the claims file. 3. Thereafter, forward the claims file and a copy of this REMAND to an appropriate clinician for opinions concerning the nature and etiology of the Veteran's bladder cancer and prostate cancer. The decision on whether the Veteran should report for examination(s) is left to the discretion of the clinician(s) asked to provide the requested opinions. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bladder cancer is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that prostate cancer is related to active service. A rationale must be provided for any opinion(s) expressed. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.