Citation Nr: 0125347 Decision Date: 10/26/01 Archive Date: 10/29/01 DOCKET NO. 00-25 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for recurrent right frontal meningioma as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran retired in October 1970 with more than 30 years of active duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision in December 1999 by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). Evidence pertinent to the issue on appeal (including an opinion from a private physician) was received at the Board in conjunction with the veteran's representative's June 2001 informal hearing presentation. The veteran, through his representative, has waived initial RO consideration of this evidence. The Board notes that the veteran's claim for service connection for a meningioma due to radiation exposure was denied in a December 1987 rating decision on the basis that the veteran's condition was not a recognized radiogenic disease; a prior denial of service connection for the disorder (July 1987 Board decision that denied the veteran's claim based on a different theory) was confirmed and continued at that time. The veteran was provided notice of this determination by VA letters dated in December 1987 and in January 1988, and he did not appeal the 1987 decision. In April 1993 and in response to solicitation from VA, the veteran requested that VA determine whether he was eligible for readjudication of his previously denied radiation claim based on the decision in National Association of Radiation Survivors, et al. (NARS) v. Derwinski, 782 F. Supp. 1392 (N.D. Cal 1992). Radiation claims involving the NARS case were subsequently placed in abeyance. The United States Court of Appeals for the Ninth Circuit (the Ninth Circuit) reversed the decision of the District Court. In December 1993 the United States Supreme Court denied a petition for a writ of certiorari, thereby leaving the ruling of the Ninth Circuit in effect. NARS v. Derwinski, 994 F.3d 583 (9th Cir. Cal. 1993), cert. denied, 114 S.Ct. 634 (1993). It appears that no further action was taken on this claim until December 1994 when the RO wrote to the Defense Nuclear Agency regarding the veteran's claim. Another claim for service connection for a meningioma was received by the RO in May 1995, and after development by the RO, was adjudicated on the merits in December 1999. This appeal ensued. The Board notes that since the RO last considered the veteran's claim for service connection for a meningioma as due to radiation in December 1987, the law relating to claims based on exposure to ionizing radiation was liberalized, inter alia, to include tumors of the brain and central nervous system in the list of diseases recognized as radiogenic. See 59 Fed. Reg. 45975 (1994) (now codified at 38 C.F.R. § 3.311 (b)(2)(xx) (2001). Thus, the veteran's claim for service connection for recurrent right frontal meningioma must be considered a new claim, separate and distinct from the claim that was finally denied prior to the effective date of the liberalizing regulation. See Spencer v. Brown, 4 Vet. App. 283, 288-90 (1993). Cf. Sawyer v. Derwinski, 1 Vet. App. 130 (1991). The Board will therefore review the claim on a de novo basis as did the RO. REMAND Medical records indicate that the veteran has been diagnosed as having a recurrent right frontal meningioma. The veteran claims that he suffers from this disability as a result of his exposure to radiation during service. The veteran's exposure to radiation during service has been demonstrated, and the veteran has submitted competent medical evidence of a causal connection between radiation exposure in service and his recurrent right frontal meningioma which satisfies the provisions of 38 C.F.R. § 3.311(b)(4) (2001). In a letter dated in January 1997, the Defense Special Weapons Agency (DSWA) indicated that the veteran was a confirmed participant of Operation DOMINIC I. A record of dosimetry for the veteran was not provided. In December 1999, the following dose estimate (referred to as a scientific dose reconstruction) was forwarded to the Under Secretary for Health by the Director, Compensation and Pension Service: 0.000 neutron and a probable 0.3 gamma with an upper bound of 1.0 rem gamma; the internal dose summary indicates the veteran's (50-year) committed dose equivalent to the brain is less than 0.15 rem. Based on the information provided and the assumption that the dose estimates were accurate, in December 1999 the Chief Public Health and Environmental Hazards Officer indicated that it was unlikely that the veteran's recurrent right frontal meningioma (brain tumor) could be attributed to exposure to ionizing radiation during service. In a September 2001 letter, Craig N. Bash, M.D., Neuroradiologist, opined that the veteran's exposure to ionizing radiation during service caused his meningioma. Dr. Bash also stated that the December 1999 opinion from the Chief Public Health and Environmental Hazards Officer was based on an inaccurate dose estimate. Dr. Bash indicated that the veteran's dose of radiation was "likely significant" and could have been "17+ to 100's of rads." When necessary to reconcile a material difference between an estimate of dose, from a credible source, submitted by or on behalf of a claimant, and dose data derived from official military records, the estimates and supporting documentation shall be referred to an independent expert, selected by the Director of the National Institutes of Health, who shall prepare a separate radiation dose estimate for consideration in adjudication of the claim. 38 C.F.R. § 3.311(a)(3) (2001). The difference between the claimant's estimate and dose data derived from official military records shall ordinarily be considered material if one estimate is at least double the other estimate. 38 C.F.R. § 3.311(a)(3)(i) (2001). A dose estimate shall be considered from a "credible source" if prepared by a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology and if based on analysis of the facts and circumstances of the particular claim. 38 C.F.R. § 3.311(a)(3)(ii) (2001). As there appears to be a material difference between a credible source, Dr. Bash, and the estimates used by the Chief Public Health and Environmental Hazards Officer, the matter should be referred to an independent expert, selected by the Director of the National Institutes of Health. The Board observes that on November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) became law. The VCAA applies to all pending claims for VA benefits and provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by VA. See Veterans Claims Assistance Act of 2000, 38 U.S.C. §§ 5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159). As such, review of the record to ensure compliance with the Veterans Claims Assistance Act of 2000 is necessary. In view of the foregoing, and in order to fully and fairly evaluate the veteran's claim, the case is REMANDED to the RO for the following development: 1. The RO should ensure that the case is forwarded to the proper officials for referral of the estimates of the veteran's radiation exposure and supporting documentation to an independent expert, as provided by 38 C.F.R. § 3.311(a)(3), for preparation of a separate radiation dose estimate for consideration in adjudication of the claim. Any opinion obtained from the designee must thoroughly discuss any materials submitted or cited by the appellant to support the claims. The opinion must account for pertinent scientific or medical studies submitted by or on the appellant's behalf, and provide the rationale for relying on data selected to support the opinion. The opinion should also report radiation dose information in a uniform manner or explain why reporting dose information in different standards is not significant to the conclusion reached. Once completed, that report should be associated with the claims folder. The case should then be reviewed again, on the basis of the expert's dose estimate, by the Under Secretary for Benefits pursuant to § 3.311(c). 2. The RO should also review the claims file and undertake any additional assistance to the veteran required by the Veterans Claims Assistance Act of 2000, and all provisions of this new legislation should be complied with. 3. After completion of all required actions, the RO should review the expanded record (including all newly received items of evidence) and determine whether the benefit sought can be granted. Unless the benefit sought is granted, the veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. S. L. KENNEDY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), 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) (2000).