Citation Nr: 21076244 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-11 403 DATE: December 22, 2021 REMANDED Entitlement to service connection for bone cancer. REASONS FOR REMAND The Veteran served on active duty from June 1973 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection bone cancer. The Veteran contends his current bone cancer disability is causally related to exposure to ionizing radiation and toxic and hazardous waste while he was in service. In his July 2011 notice of disagreement (NOD), he asserted that he was exposed to toxic and hazardous waste that was dumped in the base landfill while he was stationed at Fort Dix, New Jersey. The Veteran submitted an article along with his NOD which cited the health risks related to the contaminants found in the groundwater, surface water, and soil located near the Fort Dix, New Jersey landfill. During an October 2013 DRO hearing, he reported that he was exposed to radiation when he worked in the nuclear, biological, and chemical (NBC) room while he was stationed in Gaustadt, Germany. The Board previously remanded this matter in September 2018 for further development, to include obtaining Social Security Administration (SSA) records as well as copies of all medical records underlying its consideration of the Veteran's application for benefits. In September 2019, the requested SSA records were obtained and associated with the claims file. Additionally, treatment records were associated with the claims file. In June 2020, the Board again remanded the claim to afford the Veteran a VA examination addressing the etiology of the Veteran's bone cancer. In January 2021, the Veteran was afforded a VA examination and an opinion was obtained. The diagnosis of multiple myeloma in remission status post bone marrow transplant 2008 was noted. The examiner opined that it was less likely than not that the Veteran's advanced myeloma incurred in or caused by exposure to ionizing radiation. The rationale provided was that the review of literature regarding the issue of radiation causing myeloma had inconsistent results. The Board finds that the January 2021 opinion inadequate for rating purposes because rationale provided was conclusory and does not consider 38 C.F.R. § 3.311 which recognizes bone cancer and multiple myeloma as radiogenic diseases. Additionally, the examiner failed to address the Veteran's contention that his condition may be attributed exposure to toxic substances from the Fort Dix land fill while stationed there. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran as a matter of law the right to compliance with the Board's remand order. Moreover, the Court held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. The Board finds that the AOJ did not substantially comply with the remand directives because the opinion provided did not adequately address the etiology of the Veteran's bone cancer. While additional delay is regrettable, the Board finds that another remand is required to fairly decide the Veteran's claim. The matters are REMANDED for the following action: Schedule the Veteran for VA medical examination by an appropriate medical professional to determine the nature and etiology of his bone cancer. The entire claims file should be reviewed by the examiner. (Continued on the next page) Thereafter, the examiner should examination provide an opinion as to whether it is at least as likely as not that the Veteran's bone cancer is due to service, to include exposure to toxic and hazardous waste from the Fort Dix, New Jersey landfill and exposure to ionizing radiation, while stationed in Gaustadt, Germany as a result of claimed radiation and toxic and hazardous waste exposure as documented in the July 2015 VA memorandum. The examiner should provide a rationale for all opinions expressed. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.