Citation Nr: 1015752 Decision Date: 04/29/10 Archive Date: 05/06/10 DOCKET NO. 08-29 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for anaplastic oligodendroglioma. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from May 1973 to May 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2008 rating decision of the Detroit, Michigan, VA Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that he has anaplastic oligodendroglioma (brain cancer/tumor) as a result of service. More specifically, he asserts his anaplastic oligodendroglioma is a result of exposure to radiation in association with his occupation as a repairman on the Hawk Missile System during service, as reflected on his DD Form 214. Private records, dated from 2005 to 2006, to include a pathology report, establish a diagnosis of Grade 4 oligoastrocytoma. In May 2006, the Veteran's private doctors opined that it was at least as likely as not that his anaplastic oligodendroglioma is related to his occupational duties related to the Hawk Missile System. In an April 2008 private letter, the Veteran's doctor concluded that the Veteran's brain tumor was related to exposure to ionizing radiation in association with having worked on the Hawk Missile system, to include ionizing radiation exposure from klystrons. Service connection for a disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed Veteran. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite 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; internment as a prisoner of war (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; or the Veteran's presence at certain specified additional locations. See 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The presumptively service-connected diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, 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), cancer of the salivary gland, cancer of the urinary tract, bronchiolo- alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 C.F.R. § 3.309(d)(2). In this case, the Veteran is not shown to be a "radiation- exposed veteran" as that term is defined in 38 C.F.R. § 3.309(d)(3). The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed "radiogenic" diseases found 5 years or more after service in an ionizing-radiation-exposed Veteran may be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest in the period specified, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Undersecretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Undersecretary of Health. 38 C.F.R. § 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Pursuant to 38 C.F.R. § 3.311(b)(2), radiogenic diseases include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2). A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. See 38 C.F.R. § 3.311(b)(4). A brain tumor is a radiogenic disease. It was diagnosed in 2005, 5 years or more after the Veteran's service. In order to determine if the Veteran was exposed to ionizing radiation as he has claimed, VA contacted the Department of the Army stated that the United States Army Dosimetry Center (USADC) reported that they were not in possession of any records of the Veteran being occupationally exposed to ionizing radiation while in service. In light of the Veteran's assertions and the evidence in this case, the Veteran's claims file should be sent to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c), to include an opinion from the VA Under Secretary for Health as to whether it is at least as likely as not that the Veteran's anaplastic oligodendroglioma was caused by radiation exposure in service. Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the case to the Under Secretary for Benefits to obtain an opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran's anaplastic oligodendroglioma is a result of exposure to radiation during service. 2. In light of the above, the claim should be readjudicated. All action taken, to include identification of sources contacted and efforts made in association with the development on remand, should be documented in the claims file. The AOJ should review any opinion obtained for adequacy and if further action in that regard is necessary, such should be accomplished prior to returning the claims file to the Board. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the Veteran afforded a reasonable opportunity in which to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).