Citation Nr: 0930242 Decision Date: 08/12/09 Archive Date: 08/19/09 DOCKET NO. 07-38 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for cancer of the tongue, throat, and neck. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The Veteran had active service from June 1954 to December 1957. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran's service connection claim was adjudicated at that RO because he filed his claim based on ionizing radiation exposure, and VA has centralized the processing of such claims at that RO. The Veteran's residence is in Ohio, and that is the reason the RO in Cleveland, Ohio, is listed on the title page. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the Cleveland RO in July 2008. In September 2008, the Board remanded the Veteran's claim for further development. The case was sent to the RO in Huntington, West Virginia, which ordered the medical examination and opinion requested by the Board. The Huntington RO issued a supplemental statement of the case in May 2009, and the case is now before the Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for cancer of the tongue, throat, and neck. At various times, he has contended that his cancer is due to exposure to ionizing radiation. When he filed his service connection claim, he reported that when he was stationed at Ladd Air Force Base in Alaska from 1955 to 1957, he was required to wear dosimeters due to some sort of radiation. As was noted in the Board's September 2008 remand, at his July 2008 hearing, the Veteran presented testimony to the effect that he was contending he was exposed to ionizing radiation in service. In this regard, he stated that although "they" said that underground tests were not done in the Aleutian Islands, at the time he filed his substantive appeal a veterans counselor had made a list of three nuclear tests done in the Aleutian Islands during the time he was there. After the hearing, the Veteran submitted a handwritten list that reads: Operation GREENHOUSE - Eniwetok, Operation CASTLE - "Ebeye," and Operation REDWING - Bikini, and the list is followed by the words Amchitka Aleutian Islands. In the September 2008 remand, the Board further noted that 38 C.F.R. § 3.309(d) shows that Operation GREENHOUSE was from April 1951 to June 1951, Operation CASTLE was from March 1954 to May 1954, and Operation REDWING was from May 1956 to August 1956. It was further noted that a Department of Energy website referenced by the Office of the Surgeon General of the United States Air Force in a June 2007 letter shows that Operation GREEHOUSE was conducted at Eniwetok, Operation CASTLE was conducted at Bikini Island and Eniwetok, and Operation REDWING was conducted at Bikini Island and Eniwetok. In its remand, the Board directed that the Veteran be requested to clarify whether it is his contention that he was exposed to ionizing radiation from these nuclear weapons tests. If so, further development was to be undertaken as directed by the provisions of 38 C.F.R. § 3.311. In addition, in the remand, the Board noted the Veteran's testimony that he thought one source of his exposure to radiation in service was from a huge radar installation within 30 miles from his base. In the remand, the Board observed that the United States Court of Appeals for Veterans Claims (Court) has noted that articles presented to it establish that radar equipment emits microwave-type non- ionizing radiation. See Rucker v. Brown, 10 Vet. App. 67, 69 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984. There is medical evidence showing that in April 2006, the Veteran was diagnosed as having metastatic well- differentiated keratinizing squamous cell carcinoma of the tongue, with neck node metastases (stage IVA disease, T3N2M0). In addition, in an August 2006 letter the Veteran's radiation oncologist referred to the Veteran's service at Ladd Air Force Base in Alaska for two years in the 1950s, and that physician said it is just as likely as not that the Veteran's carcinoma was caused by his exposure to radiation in service. The physician did not, however, specify the type of radiation, ionizing or non-ionizing radiation. In order to assist the Veteran in the development of his claim, the Board included in its remand a request for a VA examination and opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's primary cancer of the base of the tongue is related to his service, to include exposure to microwave non-ionizing radiation from early warning radars. In response to the Board's September 2008 remand, the Huntington RO, in a letter dated in December 2008, requested that the Veteran state specifically whether he is claiming exposure to ionizing radiation from the U.S. nuclear weapons test on the list he submitted in July 2008, namely: Operation GREENHOUSE; Operation CASTLE; and/or Operation REDWING. In addition, the Veteran was provided the requested VA examination in January 2009. The examiner did a physical examination of the Veteran and stated he reviewed the claims file and that he also reviewed the literature for non- ionizing radiation. The examiner said it does not appear the Veteran had significant exposure to ionized radiation at the time he was in Alaska as the tests done at the time frame were many thousands of miles from Alaska, in the Marshall Islands. The examiner also said there are no reproducible, valid studies that prove non ionized radiation is a risk factor for brain, oral, or any other cancers for that matter at this time. In a statement received at the RO in February 2009, the Veteran said that he really did not know the difference between ionizing radiation and non-ionizing radiation until he looked up the definition on the Internet. He said that after considering the difference between the two, he will claim exposure to non-ionizing radiation from radar microwaves because he was "in close vicinity of" the Murphy dome radar installation, which was part of the Defense Early Warning (DEW) line. He said he had also been on this installation on numerous occasions. Thereafter, the Huntington RO readjudicated the claim and issued a supplemental statement of the case in May 2009. In its forwarding letter, dated May 4, 2009, the RO told the Veteran that if he wished to respond, he had 30 days from the date of the letter to respond. The RO subsequently transferred the case to the Board, where it was received on May 29, 2009. The record further shows that on June 4, 2009, the RO received additional evidence from the Veteran in support of his appeal, namely an April 2009 letter from a private otolaryngologist, John B. Gillen, III, M.D. The Board received this evidence in June 2009. In a July 2009 letter to the Veteran, pursuant to the provisions of 38 C.F.R. § 20.1304, the Board explained that this evidence had not been considered in a decision by the RO and he had a right to have the agency of original jurisdiction (AOJ) review such additional evidence prior to review by the Board. The Board further explained to the Veteran that he may waive this right by submitting a waiver in writing. In late July 2009, the Board received the Veteran's response in which he requested that the Board remand his case to the AOJ for review of the additional evidence. The Board will, therefore, honor the Veteran's request for remand. In his April 2009 letter, Dr. Gillen stated that regarding radiation exposure during service, it was his understanding that the Veteran had exposure to an unknown amount of ionizing radiation during atomic bomb testing. Dr. Gillen then said it is well established that ionizing radiation is at least a cofactor and probably primarily a cause of squamous cell carcinoma that occurs in the head and neck. In the next paragraph of his letter, Dr. Gillen noted that during service the Veteran had exposure to non-ionizing radiation in the form of radar or microwave energy. Dr. Gillen said that to his knowledge, there is no definitive study showing this is a cause of squamous cell carcinoma in the mouth, throat, or tongue. He said it is, however, well established that non-ionizing radiation in the form of sunlight is a cause of squamous cell carcinoma of the skin. He then said, "[t]herefore, it is my opinion that it is at least likely as not that exposure to the non-ionizing radar energy during your military service would be a cause for this squamous cell cancer that occurred in your tongue." In view of the apparently conflicting opinions of the VA examiner who conducted the January 2009 VA examination and the opinions expressed by Dr. Gillen in his April 2009 letter, it is the judgment of the Board that review of the record and an opinion by an oncologist as to the relationship, if any, between the Veteran's cancer of the tongue, throat, and neck and his active service would facilitate its adjudication of the claim. Accordingly, the case is REMANDED for the following action: 1. Arrange for a VA oncologist to review the Veteran's claims file and provide an opinion. In this regard, the Veteran's entire claims file, to include a complete copy of this REMAND, should be provided to the oncologist, and the report should reflect consideration of the Veteran's documented medical history and assertions. After review of the record, the oncologist should be requested to provide an opinion as to the most probable etiology of the Veteran's cancer of the tongue, throat, and neck. The oncologist should also render an opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran's primary cancer of the base of the tongue is related to his active service, to include exposure to microwave non- ionizing radiation from early warning radars. The physician should be requested to discuss the private medical evidence including the April 2009 letter from Dr. Gillen who said it is his opinion that it is at least likely as not that exposure to the non-ionizing radar energy during the Veteran's military service would be a cause for his squamous cell cancer that occurred in the tongue. Please emphasize to the oncologist that he or she should provide a clear explanation of the rationale for the opinions. 2. Then, after completion of any other development indicated by the state of the record, readjudicate the claim of entitlement to service connection for cancer of the tongue, throat, and neck. If the claim remains denied, issue an appropriate supplemental statement of the case (SSOC) that addresses all evidence added to the record since the May 2009 SSOC, including the April 2009 letter from Dr. Gillen (received by VA in June 2009). Provide the Veteran and his representative an opportunity to respond. The Veteran 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ M. SABULSKY 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).