Citation Nr: 21031787 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-51 412 DATE: May 24, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from December 1953 to September 1955 as an aviation electronics technician with additional earlier service in the Naval Reserve. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington. In January 2018, the Veteran testified at a video-hearing before the undersigned Veterans Law Judge. The transcript of the hearing is associated with the record. In March 2018, the Board in part reopened a previously denied claim for service connection for residuals of prostate cancer and remanded the claim for further development. In July 2019, the Board denied service connection for residuals of prostate cancer. The Veteran appealed the Board's July 2019 decision to the United States Court of Appeals for Veteran's Claims (Court), resulting in a Joint Motion for Remand (JMR). A November 2019 Court Order vacated the Board's decision and remanded this issue on appeal for compliance with the November 2019 JMR. As such the issue of entitlement to service connection for prostate cancer is again before the Board. Prostate Cancer The Veteran contends that his prostate state cancer was caused by exposure to ionizing radiation, during his time in service during his participation in Operation WIGWAM, an atmospheric nuclear weapon test. As noted in the JMR, the Board's statement of its reasons and bases were inadequate because the Board did not address whether the responses to remand for evaluations by the VA Undersecretary for Benefits and Undersecretary for Health substantially complied with the previous remand instructions including whether all factors 38 C.F.R. § 3.111(e) were considered. The parties did not cite which factors were not considered. The factors are: (1) The probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation; (2) The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology. (3) The veteran's gender and pertinent family history. (4) The veteran's age at time of exposure. (5) The time-lapse between exposure and onset of the disease; and (6) The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease. A December 2001 biopsy confirmed a diagnosis of prostate cancer at the Veteran's age of 69. The record showed no post-service radiation exposure, and the Veteran had stopped smoking 20 years earlier. In October 2006, the Defense Threat Reduction Agency confirmed the Veteran's participation in Operation Wigwam in 1955 at the age of 22 and provided dose estimates that included the type of radiation and total dose over the time of the exposure. This information addressed all factors except number 2 and the second factor in number 3 above. In light of the points raised by the JMR and the Board review of the claims file additional development is warranted. The Board finds that the most effective way to obtain information to address the factors of relative sensitivity of the tissue and family history is to obtain a medical opinion from a Veterans Health Administration physician with readjudication by the Veterans Benefits Administration agency of original jurisdiction. In the present case, the Board finds that a remand is necessary for adjudication. McLendon v. Nicholson, 20 Vet. App. 79 (2006), sets a low bar to afford an examination for a claimed service-connected condition. Because the March 2019 VA examination only included a nexus opinion regarding whether the Veteran's prostate cancer was related to exposure to radiation but does not discuss whether the other potential causes from the list below could have caused his prostate cancer, a remand is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination by an appropriate clinician to determine the nature and etiology of the Veteran's current prostate cancer. The examiner should be provided access to the Veteran's claims file, and the examiner should indicate review of those materials in the opinion report. If deemed necessary, provide the Veteran with an in-person examination. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed prostate cancer is directly caused by the Veteran's active duty military service or his exposure to radiation in-service. The examiner is also asked to provide an opinion that considers the below factors: a. The probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation; b. The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology; c. The veteran's gender and pertinent family history; d. The veteran's age at time of exposure; e. The time-lapse between exposure and onset of the disease; and f. The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease. In addition, attention is invited to the Veteran's lay statements regarding his participation in Operation Wigwam and being exposed to radiation, including an April 2005 ionizing radiation registry exam. Also, attention is invited to the April 2010 memorandum from the VA Director of Radiation and Physical Exposures that noted that the Interactive Radioepidemiological Profile of the National Institute for Occupational Safety and Health; indicated that there was a 99th percentile value for the probability of causation of the Veteran's prostate cancer by ionizing radiation of 22.71 percent. 2. Readjudicate the claim. If the benefit sought remains denied, the AOJ should provide the Veteran and the representative a Supplemental Statement of the Case (SSOC). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.