Citation Nr: 0523782 Decision Date: 08/30/05 Archive Date: 09/09/05 DOCKET NO. 99-21 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for malignant melanoma, claimed as consequent to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. H. Nilon, Associate Counsel INTRODUCTION Appellant had active military service from March 1955 to December 1958. The record shows that he is a radiation- exposed veteran as a result of participation in Operation HARDTACK I at Eniwetok Atoll in 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the New York, New York, Regional Office (RO) that denied service connection for malignant melanoma. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. REMAND Skin cancer is a radiogenic disease under 38 C.F.R. § 3.311(b)(2)(vii) (2004). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. §§ 3.307 and 3.309, and it is contended that the disease is a result of exposure to ionizing radiation in service, an assessment must be made as to the size and nature of the radiation dose or doses; when dose estimates are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range is presumed. 38 C.F.R. § 3.311(a)(1) (2004). RO obtained a dose estimate from the Defense Threat Response Agency estimating appellant's skin dose assessment to be 11.4 rem and his gamma radiation to be 1.9 rem. However, appellant cites an opinion by a private radiologist that the dose exposure was at least 13.6 rem and worst-case 33+ rem. It has been determined that the difference between 11.4 and 13.6 is considered of no clinical significance. A similar conclusion has not been reached one way or the other as to the 33 rem. A radiologist is a "credible source" under 38 C.F.R. § 3.311(a)(3)(ii), and the dose exposure is accordingly in dispute. According to 38 C.F.R. § 3.311(3)(i), 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. When necessary to reconcile a material difference between appellant's estimate of dose from a credible source, and dose data derived from official military records, the estimates and supporting documentation shall be submitted to an independent expert, selected by the Director of the National Institutes of Health (NIH), who shall prepare a separate radiation dose estimate for consideration in adjudication of the claim. The record does not show that NIH has yet been asked to provide the requisite radiation dose estimate, and further adjudication is not possible until that is done. In view of the foregoing, this case is REMANDED for the following actions: 1. The RO/AMC should submit a request to the Director, NIH, asking NIH to select an independent expert to prepare a separate radiation dose estimate for consideration in adjudication of the claim. The claims file should be provided for comprehensive review, with the following documents from the C-file highlighted for the NIH's expert for consideration: (1) letter to appellant from the Defense Nuclear Agency dated August 30, 1995, with enclosed NTPR Dose Information Summary, Summary of HARDTACK I exposures, HARDTACK I detonations, and HARDTACK Fact Sheet; (2) VA letter to Defense Nuclear Agency dated July 9, 1998; (3) letter to VA Regional Office from DTRA dated January 6, 1999, with enclosed radiation dose assessment; (4) VA memorandum dated February 1999 by S. Mather, M.D.; (5) independent medical evaluation by C.N. Bash, M.D., dated June 24, 2000, with enclosed pages 3 and 4 of GAO/RCED-86-15 Radiation Safety; (6) DTRA letter to VA dated January 16, 2002; (7) letter to VA from P. Kumar, M.D., dated April 25, 2003; (8) independent medical evaluation by C.N. Bash, M.D., dated March 3, 2004. If it is determined that the difference between 13.6 and 33 rem is of no clinical significance, that should be noted in the report filed. 2. After NIH's expert has provided the requested radiation dose estimate, RO/AMC should re-adjudicate appellant's claim for service connection for malignant melanoma. Thereafter, to the extent that the benefit sought remains denied, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ MICHAEL D. LYON 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) (2004).