Citation Nr: 21011343 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-13 873 DATE: March 1, 2021 REMANDED Entitlement to service connection for bladder cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for colon cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for kidney cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for prostate cancer, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for skin cancer, to include as due to exposure to ionizing radiation and excessive sun exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1948 to September 1940 and from October 1950 to August 1951. The Veteran passed away in March 2019 during the pendency of this appeal. The RO granted substitution in June 2019 to the Veteran’s surviving spouse, who is now the appellant. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran and his wife testified before the undersigned Veterans Law Judge during a February 2014 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in April 2014 and May 2017, wherein the Board remanded the issues for additional development. The matter has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that she is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contended prior to his death, that he had various cancers due to ionizing radiation exposure during his active service. Specifically, he asserted he was exposed to ionizing radiation during service while stopping through Hiroshima and Shemya, an island in the Aleutian Islands. See February 2014 Board hearing transcript at pgs. 8-9. For cases involving radiation exposure, service connection can be established in three ways. First, service connection can be awarded on a presumptive basis for diseases specific to veterans exposed to radiation under 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, as stated above, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1042-1043 (Fed. Cir. 1994). "Radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty, active duty for training, or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean on site participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). Here, the Veteran is not considered a "radiation-exposed Veteran" because his service personnel records do not show that he participated in a "radiation-risk" activity, as defined in 38 C.F.R. § 3.309(d)(3)(ii), Diseases specific to radiation-exposed veterans include: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d)(2). If a veteran does not have one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). The regulation specifically includes bladder, colon, kidney, prostate and skin cancers. Also, 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease became manifest after service, was not manifested to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and it is contended that it resulted from exposure to ionizing radiation in service. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. C.F.R. § 3.311(a)(2)(iii). The May 2017 Board decision remanded the claims for additional development, to include obtaining VA treatment records since 1951 from the Allen Park VAMC, John D. Dingell VAMC, Melvindale VA Clinic, Ann Arbor VAMC, and the Gaylord CBOC. Unfortunately, the development directed in the last remand was not accomplished for the reasons described below. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. 268, 271 (1998). Upon review of the Veteran’s claim file, it is unclear as to what steps the RO took to obtain these records from the various VA treatment facilities. In August 2019, the RO requested records from Ann Arbor VAMC and John D. Dingell VAMC and received negative responses from the facilities. In September 2019, the RO contacted the Saginaw VAMC to follow-up with the request for records. Records were submitted to the RO in December 2019. However, the Veteran’s claim file does not reveal any request for records with the Allen Park VAMC, Melvindale VA Clinic, or Gaylord CBOC. In a May 2020 VA letter, the RO notified the appellant that it was unable to obtain records from Allen Park, Detroit, Saginaw, and Ann Arbor VAMCs, but made no mention of the Melvindale VA Clinic or Gaylord CBOC. Thus, it does not appear that the RO was in full compliance with the May 2017 Board remand instructions regarding the VA treatment records and remand is required. The May 2017 Board decision also instructed the RO to contact any appropriate source and request the Veteran’s service personnel records, as well as any available records concerning his claimed exposure to radiation in 1950 including, but not limited to any DD Form 1141 and any other records which may contain information pertaining to his radiation dose in service. The Veteran’s records are fire-related. Specifically, a September Personnel Information Exchange System (PIES) reply indicated that the records are fire-related and that no service treatment records and no Surgeon General's Office (SGO) records were available. In November 2003 and February 2011, the RO received replies from PIES that the records were fire-related. Previously, in November 2011, the RO requested DD Form 1141, Record of Occupational Exposure to Ionizing Radiation or an equivalent record of occupational radiation exposure. In December 2011, the Army Dosimetry Center indicated that there were no records of exposure to ionizing radiation for the Veteran and that there were unable to locate any records for him. The Army Dosimetry Center also noted that their records date back to mid-1954 only. The May 2014 Board decision remanded the issues, in part, for additional development for records concerning the Veteran’s claimed exposure to radiation in 1950, including but not limited to any DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, and other records which may contain information pertaining to his radiation dose in service. In this regard, in September 2014, the RO requested a DD 1141 or an equivalent record of occupational radiation exposure to the Commander of the U.S. Army Medical Command. The RO noted that the duty description was “passed through Hiroshima” and did not list the Veteran’s contention that he was also in Shemya Island. The response received in October 2014 was from the Army Dosimetry Center and the response again stated that they were unable to locate any records for the Veteran and that the records date back to mid-1954 only. To date, the requests and answers to the Army Dosimetry Center did not address whether the Veteran had any external or internal radiation exposure during his visit to Hiroshima in 1950 and stopover in Shemya. Therefore, a more accurate and precise request to the Army Dosimetry Center is necessary to obtain any dose estimate. Additionally, the Board finds that the case must be remanded as the RO did not forward the case to the Under Secretary of Health for preparation of a dose estimate, pursuant to 38 C.F.R. § 3.311(a)(2)(iii), as instructed in the May 2017 Board decision. The RO found that essentially because no records were obtained, the Veteran’s claim was not to be forwarded to the Under Secretary for Health or the VA Under Secretary for Benefits. The requirement regarding the preparation of a dose assessment by VA is unique to claims brought under section 3.311(a)(2)(iii). VA may rely upon dose data provided by the Department of Defense in cases brought under sections 3.311(a)(2)(i) or (a)(2)(ii). The responsibility for dose estimates preparation by VA in claims brought under section 3.311(a)(2)(iii) is clear from the regulation and must be based upon all available information. Furthermore, the May 2017 Board decision remanded the issues on appeal for a VA examination. The Veteran was afforded a VA examination in September 2020. The VA examiner opined that the Veteran’s cancers are not at least as likely as not (50 percent or greater probability) incurred in or caused by exposure to ionizing radiation. However, the VA examiner did not consider the Veteran’s assertion that prior to arriving in Hiroshima, he landed in the Shemya in the Aleutian Islands where he saw others with their hair falling out. As such, an addendum medical opinion that fully takes into consideration the assertions by the Veteran is required. The matters are REMANDED for the following action: 1. Obtain VA treatment records for the period from 1951 from the Allen Park VAMC, Melvindale VA Clinic, and Gaylord CBOC. All reasonable attempts should be made to obtain these records and must be documented in the record. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file. The appellant must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38U.S.C.A. §5103A(b)(2) and 38C.F.R. §3.159(e). 2. Undertake appropriate development to obtain any additional records that may further document the Veteran's exposure to ionizing radiation, to include requesting from the Army Dosimetry Center whether the Veteran had any radiation exposure during his stopover in Shemya. All relevant requests and responses must be documented in the claims file. If any records are unavailable the Veteran must be notified of the AOJ's inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 3. After the development above concerning the extent of Veteran's exposure to radiation is completed, forward the Veteran's record to the VA Under Secretary for Health, pursuant to 38 C.F.R. § 3.311 (a)(2)(iii), for the preparation of a dose estimate. 4. If it is determined that the Veteran was exposed to any amount of radiation during service, 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 any exposure to ionizing radiation during the Veteran’s active service cause or contributed to his development of bladder cancer, kidney cancer, prostate cancer, colon cancer, and/or skin cancer. In any review of the claim under 38 C.F.R. § 3.311(c), any opinion from the VA Under Secretary for Benefits, or designee of the VA Under Secretary for Benefits, of no reasonable possibility that the cancers were caused by exposure to radiation in service must be accompanied by a thorough explanation of rationale for such conclusion. In accordance with the guidance in Stone v. Gober, 14 Vet. App. 116 (2000), such opinion need not explicitly discuss each 38 C.F.R. § 3.311(e) factor but it must be more than a cursory explanation and a mere restatement of any opinion from the office of the VA Under Secretary for Health. 3. After development of the above concerning the extent of the Veteran’s exposure is completed, obtain a VA addendum medical opinion from the VA provider who issued the September 2020 medical opinion (or if no longer available, an appropriate replacement) to address the claim for the various cancers. The record, including a copy of this remand and all findings by the VA Under Secretary for Benefits, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner is requested to provide the following opinion: Is it at least as likely as not (a 50% or greater probability) that the Veteran’s bladder cancer, kidney cancer, prostate cancer, colon cancer, and skin cancer is caused by or related to the Veteran's service and/or events therein, to specifically include his exposure to ionizing radiation in service and in conjunction with the skin cancer claim, to include hazardous sun exposure in Korea? The examiner must address the Veteran’s testimony that he believed his cancers were due to his time in Hiroshima and Shemya in the Aleutian Islands. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.