Citation Nr: 0617707 Decision Date: 06/16/06 Archive Date: 06/27/06 DOCKET NO. 93-17 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Sean Ravin, Attorney at Law ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from June 1957 until June 1987. He died on July [redacted], 1991. The appellant is the widow of the veteran. This matter comes before the Department of Veterans Appeals (VA) Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the VA Regional Office (RO) in Washington, DC that denied service connection for the cause of the veteran's death. The case was remanded by a decision of the Board dated in August 1995. By a decision dated in May 2000, the Board denied service connection for the cause of the veteran's death. The appellant appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In May 2001, the VA Office of General Counsel filed a motion to vacate the prior Board determination. By Order dated in May 2001, the Court granted the unopposed motion, vacated the Board's May 2000 decision, and remanded the case to the Board for further action in accordance with the Order. The case underwent development at the Board in April 2002 and was remanded for further action in November 2003. The Board observes that, in April 2005, the appellant requested a personal hearing before a member of the Board, but that the letter advising her of the scheduled date incorrectly identified the veteran as the claimant. The notification letter was sent to the appellant's representative, with a copy sent to the appellant's address. No response was received from either the appellant or her representative in this regard, and no one appeared for the hearing, which was scheduled for May 19, 2006. REMAND Review of the record discloses that a medical opinion dated in March 2006 was received from C. N. Bash, M.D., a specialist in neuro-radiology, who concluded that the veteran's terminal disease, chronic lymphocytic leukemia, was precipitated by his many years of exposure to ionizing radiation in service. This opinion contradicts the finding of the VA's Chief Public Health and Environmental Hazards Officer in April 1998 who found that it was unlikely that the veteran's chronic lymphocytic leukemia could be attributed to exposure to ionizing radiation during the course of his military duties. Dr. Bash's opinion identifies chronic lymphocytic leukemia as a radiogenic disease as contemplated by 38 C.F.R. § 3.311(b)(4) (2005), which requires VA to follow certain procedures for evidentiary development. The Board points out that chronic lymphocytic leukemia (CLL) has been expressly excluded from the leukemias recognized as being induced by ionizing radiation. See 38 C.F.R. §§ 3.309, 3.311(b)(2)(i) (2005). This notwithstanding, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1040 (1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection for a disability based on exposure to dioxin or radiation with proof of actual direct causation rather than under provisions in the law which provide a presumption of service connection for certain listed disorders). Thus, the Board must not only determine whether the veteran had a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability was otherwise the result of active service. In other words, the fact that the veteran does not meet the requirements of a presumptive regulation would not in and of itself preclude establishing service connection as in the alternative, service connection may be established by way of proof of actual direct causation. Dr. Bash's opinion appears to provide a certain level of proof of a direct relationship between radiation exposure and the diagnosis of CLL, but the Board finds it curious that he refers to studies that address leukemia generally, not to any that addresses CLL. Leukemia other than CLL is not the question here. If it were, the presumption of service incurrence would apply. Rather, it is because the regulatory presumption does not apply and because CLL has been specifically excluded from the list of radiogenic diseases that questions are raised about the bases for Dr. Bash's conclusions. Dr. Bash says that radiation exposures induce neoplasms and the CLL type of cancer is commonly induced. Nevertheless, the information and literature he points to in order to support this conclusion appears to relate to leukemias generally, not to CLL specifically. In contrast, when the Chief Public Health and Environmental Hazards Officer provided her opinion in April 1998, she cited to literature from 1995 that was the basis for a conclusion that CLL was not caused by ionizing radiation. Whether Dr. Bash based his opinion on more recent literature regarding the effects of ionizing radiation on the development of CLL is not clear because, as noted above, his citations appear to have been to literature that addresses leukemia generally. Under the circumstances, especially in view of the conflicting opinions, the Board finds that further development would be helpful. The appellant has asked that the case be referred to an independent medical expert; however, the Board notes that a special procedure for radiogenic diseases is specifically outlined in 38 C.F.R. § 3.311. This procedure mandates that consideration of whether to employ an outside consultant should be undertaken by the Under Secretary for Benefits. 38 C.F.R. § 3.311(c)(2) (2005). Given Dr. Bash's opinion, as noted above, and the questions raised by his references to scientific literature, the Board finds it appropriate to return this case to the RO for further analysis of the medical opinion evidence in accordance with the regulation. Accordingly, the case is REMANDED for the following action: 1. The appellant's case should be referred to the Under Secretary for Benefits for further consideration in accordance with paragraph 38 C.F.R. § 3.311(c). If the Under Secretary for Benefits determines there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, the Under Secretary should inform the RO, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c). (Dr. Bash's opinion should be addressed, as well as the literature upon which he based his opinion, and any literature to the contrary, including any studies undertaken since the 1995 study referred to in the 1998 opinion by the Chief Public Health and Environmental Hazards Officer.) If the Under Secretary for Benefits determines that further development is warranted, action should be undertaken to obtain another advisory medical opinion from the Under Secretary of Health or to employ an outside consultant in accordance with 38 C.F.R. § 3.311(d) (2005). The opinion rendered should be thoroughly explained and adequate rationale should be provided for any conclusion reached. 2. After undertaking any further development deemed appropriate, the issue on appeal should be re- adjudicated. If the benefit sought is not granted, the appellant should be provided with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the claims folder should be returned to the Board for further consideration. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2005). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2005).