Citation Nr: 9834121 Decision Date: 11/19/98 Archive Date: 11/24/98 DOCKET NO. 96-17 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral cataracts as secondary to exposure to ionizing radiation. 2. Entitlement to service connection for skin cancer as secondary to exposure to ionizing radiation. 3. Entitlement to service connection for lupus erythematosus as secondary to exposure to ionizing radiation. 4. Entitlement to an increased evaluation for coronary artery disease with hypertension, currently evaluated as 30 percent disabling. 5. Entitlement to an increased (compensable) evaluation for diabetes mellitus. 6. Entitlement to an increased (compensable) evaluation for hemorrhoids. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. L. Smith, Associate Counsel INTRODUCTION The veteran had active service from September 1954 to September 1974. This appeal is before the Board of Veterans’ Appeals (Board) from a June 1995 determination of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO affirmed its May 1996 denial of the veteran's claims for kidney cancer and lung cancer in a July 1996 rating determination. The veteran filed a VA Form 9 dated in September 1996 disagreeing with the determination. The probative medical evidence shows that that the veteran is status post right nephrectomy and status post lung resection in August 1995 for metastatic renal cell carcinoma. It appears from the September 1996 statement that the veteran contends that the metastatic renal cell carcinoma is secondary to his exposure to ionizing radiation during service. In this regard, the Board notes that where there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case, and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). The issues of entitlement to service connection for cancer of the kidney and lung as secondary to radiation exposure will be addressed in the remand portion of the decision. The issue of an increased evaluation for coronary artery disease with hypertension will be addressed in the remand portion of this decision in light of the revised criteria for rating disabilities of the cardiovascular system. 62 Fed. Reg. 65,207 (1997) (codified at 38 C.F.R. § 4.104). The issue of an increased evaluation for diabetes mellitus will be addressed in the remand portion of the decision in light of the amended criteria for rating disabilities of the endocrine system. 61 Fed. Reg. 20,446 (1996) (codified at 38 C.F.R. § 4.119). The claims for service connection for posterior subcapsular cataracts, skin cancer, and lupus erythematosus as secondary to exposure to ionizing radiation will also be addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his hemorrhoids are sufficiently disabling as to warrant a grant of entitlement to an increased (compensable) evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the veteran's claim for an increased (compensable) evaluation of 10 percent for hemorrhoids. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s claim has been obtained. 2. The veteran's disability is manifested by large hemorrhoids and frequent recurrences. CONCLUSION OF LAW The criteria for an increased (compensable) evaluation of 10 percent for hemorrhoids have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, 4.114, Diagnostic Code 7336 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1998). Generally, the degrees of disabilities specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1 (1998). In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. Where an increase in a service-connected disability is at issue, the present level of disability is of primary concern. Although review of the recorded history of a service- connected disability is important in making a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A 10 percent evaluation for external or internal hemorrhoids is warranted for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences pursuant to the schedule for rating disabilities. 38 C.F.R. § 4.114, Diagnostic Code 7336. A 20 percent evaluation is warranted when there is persistent bleeding and with secondary anemia, or with fissures. Id. The schedule provides a noncompensable evaluation for mild or moderate hemorrhoids. Id. Analysis Initially, the Board notes that following a review of the record, the Board concludes that the veteran's claim for a compensable evaluation for hemorrhoids is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is also satisfied that all relevant facts have been properly developed. The record shows that a VA examination in May 1993 was afforded and that VA outpatient treatment records have been obtained. The claims file also reflects that private treatment records have been obtained. No further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107. The Board finds that the criteria for a compensable evaluation for hemorrhoids have been met. The veteran reported a history of hemorrhoids since the late 1940s in a January 1996 VA examination. He reported an occasional speck of blood on toilet paper and pain occurring with a frequency of once per month. Physical examination revealed three large external hemorrhoids. The probative medical evidence shows that the veteran has large hemorrhoids. While the evidence does not indicate whether the hemorrhoids are irreducible or contain excessive redundant tissue, the evidence shows episodes occurring once a month. The schedule of ratings does not define frequent recurrences; however, the Board finds that episodes of once a month demonstrate frequent recurrences. Thus, the criteria for a compensable evaluation of 10 percent for hemorrhoids have been met. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Board notes that the criteria for the next higher evaluation of 20 percent for hemorrhoids have not been met. The probative medical evidence does not show persistent bleeding and secondary anemia. The rule regarding the benefit of the doubt is inapplicable for an evaluation of 20 percent in light of the fact that the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. at 53. In reaching this decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the impact the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). ORDER Entitlement to an increased (compensable) evaluation of 10 percent for hemorrhoids is granted, subject to the regulations governing the payment of monetary benefits. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The veteran contends that posterior subcapsular cataracts, skin cancer, metastatic renal cell carcinoma, and lupus erythematosus are the result of inservice exposure to ionizing radiation during service. Specifically, he contends that he was exposed to occupational radiation resulting from a 1968 crash of a B-52 bomber in which radioactive debris were scattered. The veteran has submitted service records that show he was stationed in Greenland during this period between June 1968 and June 1969. He reported that his duties included visual inspection of the containers which held the debris following the cleanup efforts following the crash. Additionally, he noted that the cleanup effort was called "project crested ice." The regulations provide with respect to claims based on exposure to ionizing radiation that (1) in all cases in which it is established that a radiogenic disease first became manifest after service and after any applicable presumptive period, and (2) it is contended that the disease resulted from exposure to ionizing radiation in service, an estimate will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1). The Board observes that the first requirement of § 3.311(a)(1) has been met, because under the provisions of paragraph (b)(2), posterior subcapsular cataracts and skin cancer are radiogenic diseases. The Board also notes that paragraph (b)(2) has been amended to include "[a]ny other cancer." 63 Fed. Reg. 50,993 (1998) (effective Sept. 24, 1998). Thus, metastatic renal cell carcinoma can be considered a radiogenic disease for the purposes of development under 38 C.F.R. § 3.311. The Board must observe that § 3.311(a)(2)(iii) clearly directs the steps to be completed in the dose assessment development phase in a claim such as the veteran’s. The regulation clearly directs that all records obtained will be forwarded to the Under Secretary for Health for preparation of a dose estimate, to the extent feasible, based on available methodologies. The Board finds, however, that the efforts in obtaining a radiation dose estimate for the veteran have not been reasonably calculated to ascertain his exposure to ionizing radiation following the 1968 crash. In this regard, the Board notes that the May 1995 letter from the Department of the Air Force only includes dates between April 1970 and August 1970 during which time the veteran participated in the dosimetry program. This letter is not probative of whether the veteran was exposed to ionizing radiation as a result to the 1968 crash and cleanup effort. Similarly, the April 1995 letter from the Department of the Army shows only that it had no record of the veteran's exposure to ionizing radiation. The letter does not show whether a crash in 1968 did indeed occur nor does it address the question of whether that crash resulted in exposure of the servicemen stationed at Thule Air Base to ionizing radiation. The Board finds that additional development is required to determine whether the veteran was exposed to ionizing radiation as a result of the 1968 incident, and if so, the magnitude of any such dose. The Board notes that the criteria for diseases of the heart and diseases of the arteries and veins were amended in December 1997, to be effective January 12, 1998. See 62 Fed. Reg. 65,207 (1997) (codified at 38 C.F.R. § 4.104). The RO has only considered the veteran’s claim for an increased evaluation for coronary artery disease with hypertension under the rating criteria for diseases of the cardiovascular system in effect prior to January 12, 1998. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant will apply unless Congress provided otherwise. See Karnas v. Derwinski., 1 Vet. App. 308 (1991). Because the RO has not considered the veteran’s claim under this “change in the law,” due process requires that the case be remanded to the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the criteria governing the evaluation of diabetes mellitus have been revised since the veteran's claim was evaluated. 61 Fed. Reg. 20,446 (1996) (codified at 38 C.F.R. § 4.119). Due process requires that the veteran's claim for a compensable evaluation for diabetes mellitus be evaluated pursuant to the revised criteria. Karnas v. Derwinski., 1 Vet. App. 308 (1991); Bernard v. Brown, 4 Vet. App. 384 (1993). As the Board noted in the introduction portion of this decision, the veteran filed a timely notice of disagreement in the September 1996 VA Form 9 with respect to the July 1996 rating decision wherein the RO denied service connection for kidney and lung cancer. Where there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case, and the RO’s failure to issue a statement of the case is a procedural defect requiring remand. Godfrey v. Brown, 7 Vet. App. at 408-10. In light of the above, and to ensure full compliance with due process requirements, the veteran’s claims are remanded to the RO for the following development: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA or private, inpatient or outpatient, who may possess additional records pertinent to his claims. After any necessary authorization for release of medical information is secured from the veteran, the RO should attempt to obtain copies of those treatment records from those identified by the veteran whose records have not previously been secured. Regardless of the response from the veteran, the RO should obtain any current, outstanding VA treatment records pertinent to his claims. 2. The RO, as provided in 38 C.F.R. § 3.311(a)(2)(iii), should insure that all likely sources who may possess information regarding the veteran’s claimed exposure to radiation have been contacted. In this regard, the RO should contact the Defense Nuclear Agency (currently Defense Special Weapons Agency (DSWA) to ascertain whether they have information regarding the veteran's exposure to ionizing radiation as a result of the 1968 plane crash at Thule Air Base in Greenland and "project crested ice." The RO should take any appropriate action suggested by the DSWA in the event that it cannot provide a dose estimate for the veteran. In the event that DSWA is unable to provide a dose estimate, the RO should contact the Dosimetry Branch of the Department of the Air Force located at Brooks Air Force Base to determine whether it has any information regarding the 1968 crash and "project crested ice." In the event that the Air Force Dosimetry Branch is unable to provide a dose estimate, the RO should obtain any available information regarding the 1968 incident from the U.S. Army Ionizing Radiation Dosimetry Center; the Navy Dosimetry Center; or, Reynolds Electrical & Engineering Company, Radiological Evaluation Center. The RO should undertake any appropriate development to ascertain the veteran's dose estimate in accordance with the information provided by the aforementioned authorities. 3. If the RO determines that such development has been accomplished, the records which have been obtained and the veteran’s statements concerning his activities in service should be referred to the Under Secretary for Health for the preparation of a dose estimate, which may include a determination of no exposure. If it is determined that the veteran was exposed to ionizing radiation, as claimed, the issues should be referred to the Under Secretary for Benefits under 38 C.F.R. § 3.311(c) as provided by § 3.311(b)(1). See also Wandel v. West, 11 Vet. App. 200, 205 (1998) (holding that absent competent evidence of radiation exposure, VA is not required to forward a claim to Under Secretary for Benefits). 4. The RO should schedule a VA examination of the veteran by an appropriate specialist(s), to determine the nature and extent of the severity of his coronary artery disease with hypertension; and, diabetes mellitus. Any further indicated special studies should be conducted. The claims file, copies of the previous and amended criteria for rating diseases of the cardiovascular system and endocrine system, and a separate copy of this remand must be made available to and reviewed by the examiner(s) prior and pursuant to conduction and completion of the examination(s). The examiner(s) should identify all of the veteran’s symptomatology associated with heart disease and hypertension, and diabetes mellitus, and characterize the level of impairment. Any opinions expressed as to the severity of the veteran's heart disease, hypertension, and diabetes mellitus must be accompanied by a complete rationale. 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested development with respect to the veteran's claims for disabilities as secondary to exposure to ionizing radiation, the requested examination report(s) and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 6. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issues of entitlement to an increased evaluation for coronary artery disease and hypertension, and diabetes mellitus with consideration of the previous and amended criteria for rating disorders of the cardiovascular system and endocrine system, respectively, with application of the criteria more favorable to the veteran. The RO should again consider the issues of entitlement to service connection for bilateral cataracts, skin cancer, and lupus erythematosus as secondary to radiation exposure. 7. The RO should issue a statement of the case pertaining to the May 1997 rating decision wherein the RO denied service connection for kidney cancer and lung cancer as secondary to radiation exposure. If the benefits requested on appeal are not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Appeals for Veterans Claims within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a 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) (1998). - 2 -