Citation Nr: 21022770 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-07 554 DATE: April 19, 2021 REMANDED Entitlement to service connection for prostate cancer, claimed as the result of exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1970 to December 1971 and from April 1972 to September 1994. He also served in the Reserves from December 1971 to April 1972. In August 2017, he testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Veteran claims that he developed prostate cancer as a result of his exposure to radiation during active duty service. In his written statements, he has explained that he was exposed to radiation when operating x-ray machines during his work as a dental assistant. His service personnel records confirm his work as a dental assistant and include at least some documentation describing the degree of his occupational exposure to radiation. In January 2018, the Board denied service connection for prostate cancer. The Board’s decision relied on radiation exposure records provided by the Army Dosimetry Center and on advisory medical opinions from the Under Secretary of Health and the Director of Compensation Service, both issued in July 2011. Both opinions, in turn, relied on the radiation exposure information previously provided by the Army Dosimetry Center. After further proceedings before the United States Court of Appeals for Veterans Claims (Court), counsel for both parties filed a Joint Motion for Partial Remand (JMR) in November 2018, in which they agreed that the Board erred in relying on these opinions because, when it provided information to the Army Dosimetry Center concerning the scope of the Veteran’s service, the Agency of Original Jurisdiction (AOJ) indicated periods of service between April 1970 and December 1971 and between October 1976 and September 1994, neglecting the period of active duty service from April 1972 and October 1976 and reserve service between December 1971 and April 1972. When it granted the parties’ JMR in December 2018, the Court vacated the denial of service connection for prostate cancer and remanded that claim back to the Board. Attempting to remedy the problem identified in the JMR, the Board remanded the prostate cancer claim for further development in May 2019 and, most recently, in May 2020. The most recent remand identified two problems with the AOJ’s efforts to obtain relevant radiation exposure information. First, the AOJ’s request for records through the Personnel Information Exchange System (PIES), submitted in July 2019, failed to request information concerning his period of reserve service between December 1971 and April 1972. The AOJ also mailed an appropriate letter to the Army Dosimetry Center, but failed to clarify and pursue the request when the first reply from that organization suggested some uncertainty as to whether the request should be made to the Army Dosimetry Center or to the VA Regional Office in Jackson, Mississippi. In its May 2020 remand, the Board therefore instructed the AOJ to make a new request to the Army Dosimetry Center for radiation exposure information during all of the Veteran’s known periods of active duty and reserve service. The Board further instructed the AOJ to “make a new request using the PIES System for any radiation exposure information related to the Veteran’s Reserve service between December 1971 and April 1972.” After completing these efforts, the AOJ was asked to request a new opinion from the appropriate Under Secretary concerning possibility of a relationship between radiation exposure and prostate cancer and proceed with any further development required by 38 C.F.R. § 3.311. The AOJ mailed a letter to the Army Dosimetry Center in July 2020, which provided essentially the same radiation dose information which it submitted during the development of the Veteran’s initial claim in July 2011. This information consisted of radiation dose measurements between November 1970 and January 1972 and between February 1977 and July 1978. But the Veteran has indicated that he worked on x-ray machines at Fort Hood in Texas between April 1972 and April 1973 and at the Army Dental Clinic in Landstuhl, West Germany between Apri l973 and October 1976. Apparently realizing that the information still appeared to be incomplete, the AOJ attempted to confirm that the Army Dosimetry Center had made a thorough search of its records based on all of the relevant periods of service. In January 2021, an employee of the Army Dosimetry Center, who was designated as the point of contact for VA concerning this request, sent an electronic mail message confirming that, “We have researched our database for all periods of service for this veteran and the Exposure History is complete.” Unfortunately, the AOJ does not seem to have taken the same degree of care when preparing the post-remand PIES request required by the Board’s remand. In June 2020, the AOJ submitted a PIES request seeking radiation exposure information and identifying three periods of service: (1) April 1970 to December 1971; (2) April 1972 to May 1974; and (3) October 1976 to September 1994. These terms do not comply with the order to request “any radiation exposure information related to the Veteran’s Reserve service between December 1971 and April 1972.” The terms also fail to include the Veteran’s active duty service between May 1974 and October 1976. The response to the post-remand PIES request, received in July 2020, indicates that, “All available personnel and medical records were uploaded to VBMS in response to PIES ID 7078501.” This identification number refers to the July 2019 request which, as the Board previously explained, was inadequate. Thus, the language of the July 2020 PIES response suggests that, aside from the unsuccessful search for new records at the Army Dosimetry Center, there was no post-remand search for radiation exposure information. If the Army Dosimetry Center had been able to provide radiation exposure corresponding to all of the Veteran’s potentially relevant periods of service, then it might be appropriate to treat the inadequacy of the June 2020 PIES request as harmless error. But the Army Dosimetry Center was unable to obtain any new radiation exposure information. While the need for further delay is regrettable, VA’s duty to assist the Veteran and the Board’s duty to enforce compliance with its earlier remand orders both require a new remand for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The AOJ should also make a new request using the PIES System for any radiation exposure information related to the Veteran’s active duty or reserve service. The terms of this request should inform the recipient that the potentially relevant periods of service consisted of active duty from April 1970 to December 1971, reserve service between December 1971 and April 1972, and active duty service between April 1972 and September 1994. The AOJ is advised that its June 2020 PIES request was inadequate because it failed to include the Veteran’s Reserve service between December 1971 and April 1972 and his active duty service between May 1974 and October 1976. 2. The AOJ should proceed with any other development required by 38 C.F.R. § 3.311. If the AOJ obtains any previously unavailable information about the Veteran’s in-service exposure to radiation, the AOJ should request a new opinion from the appropriate Under Secretary   concerning the claim for service connection for prostate cancer. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.