Citation Nr: 21009951
Decision Date: 02/23/21	Archive Date: 02/23/21

DOCKET NO. 18-24 538
DATE: February 23, 2021

REMANDED

Entitlement to service connection for prostate cancer due to radiation exposure is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1960 to July 1964.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board remanded the matter for development under 38 C.F.R. § 3.311 to include an assessment of the size and nature of the in-service radiation dose as well as review of the claim by the Director, Compensation Service. 

Prior to that development being undertaken, a VA etiology opinion was provided in July 2020 in which a clinician found the Veteran’s prostate cancer less likely than not due to service based on “review of service records fail[ing] to show exposure to ionizing radiation during service.” A couple months later, in September 2020, the Defense Threat Reduction Agency issued a letter detailing the Veteran’s radiation exposure levels during his participation in Operation DOMINIC I. In December 2020, the Director, Compensation Service issued a memorandum stating that the July 2020 VA opinion was inadequate and requesting a new medical opinion. Then, a supplemental statement of the case was issued denying the claim, and the matter was returned to the Board.

“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board agrees that the July 2020 VA etiology opinion was based on the factually incorrect premise that the Veteran was not exposed to radiation in service and therefore is an inadequate opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board must therefore remand for a new VA opinion. Barr, 21 Vet. App. at 311; see also Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matter is REMANDED for the following action:

1. Obtain an addendum VA medical opinion regarding the etiology of the Veteran’s prostate cancer. The clinician must opine whether it is at least as likely as not that the Veteran’s prostate cancer is related to his in-service radiation exposure while participating in Operation DOMINIC I from April 1962 through November 1962, including being on the deck of a ship during detonations (“very hot flash from the blast which lasted several seconds,” “I remember being able to see my bones in my forearm for an instant”) and below deck during other detonations, as well as touching, pushing, and performing maintenance on planes and helicopters that made trips to retrieve nuclear testing pods, data, and other materials.

The clinician should assume that the Veteran had exposure to the maximum levels of estimated radiation doses.

2. Then, forward the case to the VA Under Secretary for Benefits to obtain an opinion as to whether it is at least as likely as not that the Veteran’s prostate cancer resulted from exposure to ionizing radiation during service. 

3. After the above development and any other development deemed necessary is completed, readjudicate the Veteran’s claim.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Davis, 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.