Citation Nr: 0909651 Decision Date: 03/16/09 Archive Date: 03/26/09 DOCKET NO. 07-15 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Dale, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1962 to May 1965. He died in December 2005. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine which denied the appellant's claim of entitlement to service connection for the cause of the Veteran's death. The appellant filed a notice of disagreement in August 2006. A decision review officer (DRO) conducted a de novo review and confirmed the RO's findings in a April 2007 statement of the case (SOC). An appeal was perfected with the submission of the appellant's substantive appeal (VA Form 9) in May 2007. In January 2008 the appellant testified at a personal hearing which was chaired by the undersigned Veterans Law Judge at the Board's offices in Washington D.C. A transcript of the hearing has been associated with the Veteran's VA claims folder. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND For reasons expressed immediately below, the Board believes that the issue on appeal must be remanded for further evidentiary development. The appellant alleges that the cause of the Veteran's death is related to his exposure to ionizing radiation during his service on the USS Long Beach, a nuclear powered ship. See the January 2008 hearing transcript, page 5. While the Veteran did not wear a badge to gauge his exposure to radiation during service, the Naval Dosimetry Center reported that the average annualized occupational dose for individuals on this ship in 1963 was 2.04 roentgen equivalent units (rem). When a range of dose estimates is provided, the highest dose will be presumed. See 38 C.F.R. § 3.311(a). The Board further notes, however, that the appellant has asserted and submitted evidence from the Internet that the USS Long Beach leaked radiation. See the January 2008 hearing transcript at page 35. There are two conflicting medical opinions of record concerning a relationship between the Veteran's fatal central nervous system lymphoma and in-service radiation exposure. The first medical opinion of record is a July 2003 letter from D.L.P., M.D. which finds a relationship between the Veteran's in-service radiation exposure and his fatal central nervous system lymphoma. However, this statement is conclusory and couched in terms of possibility rather than likelihood. A June 2004 medical opinion from the Dr. S.M., VA Chief Public Health and Environmental Hazards Officer determined that " . . . it is unlikely that the Veteran's lymphoma can be attributed to ionizing radiation in service." In forming her opinion, the Dr. S.M. utilized the Interactive Radioepidemiolological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) in determining that the probability that the Veteran's radiation exposure caused his fatal central nervous system lymphoma was 3.48 percent. However, the appellant, a registered nurse, asserts that Dr. S.M. erred when inputting data to the IREP (i.e., listing the primary cancer as "lymphoma & multiple myeloma" rather than "central nervous Non- Hodgkin's Lymphoma" and the exposure rate as "acute" rather than "chronic"), which caused a decrease in the probability percentage. See the January 2008 hearing transcript at page 23. It appears that the evidence now in the file is sketchy, conflicting and possibly erroneous. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions must again be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2008) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Accordingly, this case is remanded to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should contact the appellant in order to ascertain where she obtained the information relating to the claimed radiation leak on the USS Long Beach. Any evidence obtained should be associated with the claims folder. 2. VBA must arrange for a medical opinion as to whether the Veteran's fatal central nervous system lymphoma was caused by his exposure to ionizing radiation during service. The reviewer should review the claims file and provide an opinion, with reasons, as to whether it is as least as likely as not that the Veteran's exposure to ionizing radiation caused his fatal central nervous system lymphoma. If there is a more likely cause of the Veteran's fatal central nervous system lymphoma, this should be identified. A report should be prepared and associated with the claims folder. 3. After the development requested above has been completed, and after undertaking any additional development it deems necessary, VBA should review the record and readjudicate the appellant's claim. If the decision remains unfavorable to the appellant, a supplemental statement of the case (SSOC) should be prepared. The appellant and her representative should be provided with the SSOC and an appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ Barry F. Bohan 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) (2008).