Citation Nr: 21010996 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-27 345 DATE: February 26, 2021 REMANDED Entitlement to service connection for residuals of prostate cancer, to include urinary incontinence, claimed as due to in-service exposure to ionizing radiation, is remanded. Entitlement to service connection for erectile dysfunction, claimed as secondary to residuals of prostate cancer. Entitlement to an initial evaluation in excess of 30 percent for service-connected residuals of skin cancer affecting the head, face, and neck, is remanded. Entitlement to an initial compensable evaluation for service-connected residuals of skin cancer affecting the left forearm is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corpsm2 1951 to February 1954. This matter comes to the Board of Veterans' Appeals (Board) from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In January 2021, the Veteran presented oral testimony in support of his appeal at a Board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. 1. Entitlement to service connection for residuals of prostate cancer, to include urinary incontinence, claimed as due to in-service exposure to ionizing radiation, is remanded. The evidence of record reflects that the Veteran’s active duty included participation in Operation TUMBLER-SNAPPER, an atmospheric nuclear test series conducted at the Nevada Test site in 1952. A diagnosis of prostate cancer was confirmed by biopsy and pathological testing in October 2008, and the underwent robotic prostatectomy surgery in November 2008. He contends that this disability and the resulting residuals are due to his confirmed in-service exposure to ionizing radiation. Under 38 C.F.R. § 3.311, all claims in which it is established that the Veteran has a radiogenic disease, such as prostate cancer, within the specified time period and was exposed to ionizing radiation, referral to the Under Secretary for Benefits is required, followed by readjudication of the claim. In this case, although the Defense Threat Reduction Agency (DTRA) provided a dose estimate in September 2018, the AOJ has not yet completed any additional development outlined in the applicable regulation. To the above point, the Board observes that the November 2018 rating decision alludes to an “Administrative decision for prostate cancer dated [November 28, 2018],” and finds that “the VA has opined that there is no reasonable possibility that your condition resulted from your exposure to radiation during your military service.” The record is devoid of any administrative decision dated on November 28, 2018, aside from the rating decision on appeal, and the conclusory finding does not identify the opining party within VA. In sum, it appears that the AOJ may have undertaken the development required by the applicable regulation; however, the records associated with this development are not associated with the file. Upon remand, the AOJ must ensure completeness of the record for review, and if the records outlining the required actions are not available or found to be non-existent, the AOJ must take corrective actions. Notwithstanding the above procedural and regulatory controls regarding claims based on in-service exposure to ionizing radiation, the Veteran is not precluded from establishing service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this respect, the evidence recounted above amply satisfies the low threshold to trigger VA’s duty to assist the Veteran by providing him a VA examination and obtaining a medical opinion to determine the likely etiology of his prostate cancer and resulting residuals. McLendon v. Nicholson, 20 Vet. App. 79 (2006) 2. Entitlement to service connection for erectile dysfunction, claimed as secondary to residuals of prostate cancer. The Veteran contends, and the evidence confirms, that his erectile dysfunction is caused by his prostate cancer. As such, this appealed issue is reliant on the outcome of that concerning the etiology of his prostate cancer. As such, the Board must defer readjudication of this appealed issue at this time. 3. Entitlement to an initial evaluation in excess of 30 percent for service-connected residuals of skin cancer affecting the head, face, and neck, is remanded. 4. Entitlement to an initial compensable evaluation for service-connected residuals of skin cancer affecting the left forearm is remanded. As an initial matter, it appears that the AOJ has characterized the Veteran’s initial claim to establish service connection for skin cancer into two distinct categories for rating purposes. Specifically, the Veteran’s skin cancer scars have been separately rated based on their anatomical position (i.e., right forearm and head/face/neck). The November 2018 VA scars examination and rating decision identifies one scar of the Veteran’s left forearm and 5 separate scars of the head, face, and neck. At the January 2021 Board hearing, the Veteran testified that he has had additional instances of skin cancer affecting the head face and neck since the November 2018 VA examination, and these scars have since been excised. If any of these scars are from additional instances of skin cancer diagnoses within one year of the November 2018 rating decision, the Veteran’s award should be amended for their inclusion, which is problematic, as the record does not reflect their size and/or symptoms. These matters may be corrected after re-examination and readjudication in connection with the necessary development outlined below. The Veteran’s service-connected facial scarring involves three facial features or paired sets of facial features (forehead, lips, and ears); however, the November 2018 VA examination report does not describe these scars with the specificity necessary for rating under the applicable diagnostic criteria. Specifically, while the Veteran’s left ear scar clearly involves visible tissue loss, the such is not the same regarding his bottom lip (left and right) and left forehead. To this point, pictures of the Veteran’s facial scarring in the file appear to show that these areas are indented or depressed in comparison to the surrounding tissue. Assuming that the surface of the skin/lips in these areas was even prior to excision of the Veteran’s skin cancer, the procedures resulted in scarring that includes tissue loss. This medical matter is outside the Board’s purview and must be clarified on remand. The matters are REMANDED for the following action: 1. The AOJ, with the Veteran’s assistance, must obtain and associate with the file all outstanding VA and private treatment records pertinent to the issues subject to this remand. 2. Thereafter, the AOJ must undertake all efforts to associate with the file the “Administrative decision for prostate cancer dated [November 28, 2018],” and undated opinion “that there is no reasonable possibility that your condition resulted from your exposure to radiation during your military service.” Alluded to in the November 2018 rating decision. All efforts to identify and obtain these items must be commemorated within the Veteran’s file. 3. If the “Administrative decision for prostate cancer dated [November 28, 2018]” alluded to in the November 2018 rating decision is unavailable or is not an opinion from the Undersecretary for Benefits regarding the Veteran’s prostate cancer, the AOJ must transfer the Veteran’s file to the VA Undersecretary for Benefits for an opinion as to whether the Veteran's prostate cancer is etiologically related to in-service exposure to ionizing radiation, in accordance with 38 C.F.R. § 3.311(c). 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his residuals of prostate cancer and erectile dysfunction. The Veteran’s file must be made available to, and reviewed by, the VA examiner in connection with this examination. Any necessary tests must be completed. Thereafter, the VA examiner is requested to address the following: a. Is the Veteran’s prostate cancer and residuals, including any urinary incontinence, at least as likely as not proximately due to or the result of any incident of his service, to specifically include his confirmed exposure to ionizing radiation as part of Operation TMBLER-SNAPPER in 1952. *In addressing the above, the examiner is asked to discuss the Veteran’s assertion that the inside of his body was exposed to ionizing radiation by inhalation of the fallout shortly after the atomic detonation. If the examiner finds that the Veteran was internally exposed to ionizing radiation or other hazardous agents in the way he contends, the examiner must further comment on whether such increased his probability of developing prostate cancer. b. Provide an opinion concerning whether the Veteran’s urinary incontinence and erectile dysfunction are at least as likely as not caused or aggravated by residuals of prostate cancer. Any opinion(s) are to be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resort to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 5. Thereafter, the AOJ must request that the Veteran be scheduled for a VA skin/scars examination to evaluate his service-connected residuals of skin cancer affecting the head, face, neck, and left arm. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran's service-connected skin cancer affecting the head, face, neck, and left arm. In responding to the above, the VA examiner must specifically address the following: a. Identify any active skin cancer or scars present on the Veteran’s head, face, neck, and left arm. b. Compare the skin cancer/scars present in part (a) with those identified in the November 2018 VA examination report. For any current skin cancer/scar identified presently that was not noted on the November 2018 VA examination report, provide an approximate date of initial onset. c. The anatomical location, dimensions, and total area of each identified skin cancer/scar must be described in detail. d. Provide statements concerning whether each skin cancer/scar identified in part (a) is painful or unstable. e. Identify whether the Veteran’s head, face, and neck scars include visible or palpable tissue loss and gross distortion or asymmetry of an features or paired sets of features. *In addressing the above, the examiner is asked to discuss whether the Veteran’s service-connected lip and forehead scars are indented or depressed in comparison to the surrounding tissue. If any part of the area of these scars is indented or depressed compared to the surrounding area, state whether such represents tissue loss from excision of the Veteran’s skin cancer. f. Identify all characteristic of disfigurement present in the Veteran’s skin cancer/scars of the head, face, neck, and left forearm. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. Thereafter, the AOJ must readjudicate the issues on appeal. If any benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with a copy of the readjudication and afforded an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.