Citation Nr: 21076918 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-11 065A DATE: December 28, 2021 REMANDED Entitlement to service connection for cancer of the small intestine, claimed as secondary to exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 to June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.§ 5103A; 38 C.F.R.§ 3.159. 1. Entitlement to service connection for cancer of the small intestine The Veteran asserts that his cancer of the small intestine is due to exposure to ionizing radiation during service. Under 38 C.F.R. § 3.311(a)(1), in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in § 3.307 or § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. Initially, the Board notes that cancer of the small intestine is a radiogenic disease. 38 C.F.R. § 3.311(b)(2)(xxiv) (Any other cancer); see also 38 C.F.R. § 3.309(d)(2)(vii) (cancer of the small intestine). The record also shows that the Veteran was initially diagnosed with small intestine cancer in 2012, more than 30 years after service, and therefore it did not become manifest to a compensable degree within any applicable presumptive period. See 38 C.F.R. §§ 3.307, 3.309. Finally, the Veteran contends that his small intestine cancer is a result of exposure to ionizing radiation in service. Specifically, he contends that while stationed overseas in Germany (from July 1976 to June 1979), he worked in close proximity to the HAWK radar weapon system, a surface-to-air guided missile that provides air defense coverage against aircraft, on a near daily basis. See Hearing Transcript, August 2021. Here, the Board finds that the Veteran's claim for entitlement to service connection for small intestine cancer meets the initial review requirements under 38 C.F.R. § 3.311(a)(1) for claims alleging exposure to ionizing radiation. However, in this case it does not appear that all development steps directed by 38 C.F.R. § 3.311 have been completed. Further development is now required including determining a dose assessment, and review by the Under Secretary for Benefits. See 38 C.F.R. §§ 3.311(a)(1), (b), (c). The matters are REMANDED for the following action: 1. Obtain and associate with the record all VA and private treatment records for the Veteran to include any Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). Additionally, given the assertion that the dates were listed incorrectly on the previous request by the RO to the U.S. Army Dosimetry Center, appropriate requests must be made necessary to verify his duty stations and locations during active service from July 1976 to June 1979, to include information as to the Veteran's asserted exposure to radiation through the HAWK radar weapon system during that time period. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. After the foregoing development has been completed, develop the appellant's claim as necessary in accordance with the provisions of 38 C.F.R. § 3.311. The development should include forwarding all records concerning the Veteran's radiation exposure, including any relevant service records, statements or testimony regarding exposure, and any other information obtained, to the Under Secretary for Health for preparation of a radiation dose estimate, to the extent feasible based on the Veteran's active-duty service. If a specific estimate cannot be made, a range of possible doses should be provided. If more information from the appellant is required regarding specifics of the Veteran's alleged exposure, he and his representative should be contacted and asked to provide the information. Additionally, if the above-requested development results in a positive dose estimate, referral should be made to the Under Secretary for Benefits for consideration of the Veteran's claim in accordance with 38 C.F.R. § 3.311(b) and (c). All development actions taken, and any determinations made, must be documented in the claims file. 3. If the above-requested development results in a finding of a non-exposure dose estimate, or the Under Secretary for Benefits finds that the Veteran's small intestine cancer is not the result of his exposure to ionizing radiation by opinion in accordance with 38 C.F.R. § 3.311(b) and (c), the RO should undertake the necessary measures to obtain a medical opinion by an appropriate medical professional for an opinion on direct service causation for his small intestine cancer. The RO should arrange for the record, to include a copy of this Remand, to be forwarded to an appropriate clinician for review and to provide the opinions sought. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of examination, if any, the examiner is asked to address the following: (a.) For the Veteran's cancer of the small intestine, the examiner must provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during his service. In rendering the opinion, the examiner must take into consideration the otherwise competent and credible lay statements of the Veteran that he worked with radar equipment at a military installation while serving overseas in Germany. In rendering the opinion, the examiner must take into consideration any communication made by the Under Secretary for Benefits in this case, to include dose estimates and opinions, if any. 4. Lastly, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.