Citation Nr: 21028473 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-35 086 DATE: May 11, 2021 REMANDED Entitlement to service connection for cancer of the oral cavity, as due to ionizing radiation exposure, is remanded. Entitlement to service connection for bladder cancer, status post cystoprostatectomy, as due to ionizing radiation exposure, is remanded. Entitlement to service connection for skin cancer, as due to ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from January 1945 and October 1946, to include service in Japan. In May 2018, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to service connection for oral cancer, bladder cancer, and skin cancer for further development. Specifically, the Board instructed the regional office (RO) to obtain dose estimate of radiation exposure from the appropriate authority. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for cancer of the oral cavity, as due to ionizing radiation exposure, is remanded. 2. Entitlement to service connection for bladder cancer, status post cystoprostatectomy, as due to ionizing radiation exposure, is remanded. 3. Entitlement to service connection for skin cancer, as due to ionizing radiation exposure, is remanded. Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand, particularly as this matter has been the subject of prior remands, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. Here, the Veteran contends that he was exposed to radiation during service. The Veteran avers that he and his buddies took a sight-seeing "day trip" to Hiroshima. He has submitted pictures that they took in Hiroshima as proof that they were there. In the alternative, he cites exposure from flying over the city, once in a cargo plane, and from helping to load trucks with refugees and workers from the Hiroshima area. Finally, while stationed in Japan, he contends he was in close physical contact with displaced Japanese workers and animals that had direct radiation exposure. Although the record contains no notation suggesting that the Veteran served with the occupation forces of Hiroshima under 38 C.F.R. § 3.309(d), the service personnel records cannot confirm the Veteran's presence or absence from Hiroshima during a one-day trip and a single overhead plane ride during service. However, the Board finds the Veteran credible in his assertions and concedes that the Veteran was exposed to radiation during his service in Japan. Although the RO requested a dose estimate from the Defense Threat Reduction Agency (DTRA), the DTRA responded that they required more information from the Veteran as they could not select two days at random or provide a range of doses for the period that the Veteran was stationed in Japan. See December 2020 Third Party Correspondence. The Board notes that the Veteran is over 90 years old and therefore, has problems recalling exact dates. However, in light of the Board's concession of the Veteran's radiation exposure, this matter must be forwarded again to the DTRA or the Under Secretary for Health for a worst-case dose estimate then to VA's Under Secretary for Benefits for consideration of the Veteran's claim. Finally, the Veteran has not be afforded a VA examination with respect to his claim of service connection for skin cancer. VA's duty to assist includes providing a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, the Veteran's medical records reflects that he has been diagnosed with skin cancer. See July 2019 Medical Treatment Record Non-Government Facility; September 2020 Medical Treatment Record Non-Government Facility. He has asserted that his skin cancer is due to radiation exposure, which the Board concedes. However, there is insufficient evidence of record to decide the claim. Consequently, remand for an examination and etiology opinion is warranted. See McLendon, 20 Vet. App. at 83-86; Locklear v. Nicholson, 20 Vet. App. 410 (2006). The matters are REMANDED for the following action: 1. Forward the Veteran's statements and testimony regarding radiation exposure, and any other information obtained while the case is Remand status to VA's Under Secretary for Health, or its designee, as is appropriate, for preparation of a dose estimate, to the extent feasible, based on the Veteran's statements that: 1) he and his buddies took a sight-seeing "day trip" to Hiroshima between September 1945 to July 1946; 2) he flew over Hiroshima, once in a cargo plane; 3) he helped to load trucks with refugees and workers from the Hiroshima area; 4) and while stationed in Japan, he was in close physical contact with displaced Japanese workers and animals that had direct radiation exposure. The agency is reminded that if a dose estimate may not be feasible due to the wide range of dates, a worst-case scenario estimate must be provided, giving the Veteran benefit of the doubt. 2. Then, refer the claim to the Under Secretary for Benefits for further consideration in accordance with paragraph 38 C.F.R. § 3.311(c). 3. If radiation exposure is not confirmed after the requested development is completed, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his skin cancer. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Identify and any currently diagnosable condition associated with the Veteran's skin cancer, to include any and all symptomatology. (b.) For each diagnosed condition, determine whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's skin cancer had its onset in or is related to service, to include CONCEDED radiation exposure? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.