Citation Nr: 1005477	
Decision Date: 02/05/10    Archive Date: 02/25/10

DOCKET NO.  06-35 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New 
Jersey


THE ISSUES

1.  Entitlement to service connection for renal cell 
carcinoma, claimed as secondary to exposure to ionizing 
radiation.

2.  Entitlement to service connection for diabetes mellitus, 
claimed as secondary to exposure to ionizing radiation.


REPRESENTATION

Appellant represented by:	National Association of County 
Veterans Service Officers


WITNESSES AT HEARING ON APPEAL

Veteran; his wife


ATTORNEY FOR THE BOARD

B. Buck, Counsel


INTRODUCTION

The Veteran served on active duty from May 1954 to May 1956.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a January 2005 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Newark, New Jersey, which denied entitlement to the benefits 
currently sought on appeal.  The Veteran appeared before the 
undersigned Acting Veterans Law Judge in a Travel Board 
hearing in Newark in September 2007 to present testimony on 
the issues on appeal.  The hearing transcript has been 
associated with the file.  

In a March 2009 decision, the Board denied the claims.  The 
Veteran appealed that decision to the Court of Appeals for 
Veterans Claims, and by order dated in November 2009, that 
court granted the Secretary's motion for remand.

The appeal is REMANDED to the agency of original 
jurisdiction.  VA will notify the appellant if further action 
is required.


REMAND

The Veteran contends that his disabilities were caused by 
exposure to residual ionizing radiation while he was 
stationed in the Marshall Islands from November 1954 to 
November 1955.  His personnel records confirm that he was 
stationed on the Eniwetok Atoll within six months of 
Operation CASTLE, a six-detonation nuclear weapon test series 
held in that location.  

On remand, the agency of original jurisdiction (AOJ) must 
contact the Defense Threat Reduction Agency (DTRA) of the 
Department of Defense to formulate a dose estimate for this 
Veteran based on his presence on the atoll within six months 
of the nuclear testing.  See 38 C.F.R. §§ 3.309(d)(3)(iv)(B), 
3.311(a).  Furthermore, if the Veteran's dose estimate is 
indicative of exposure to radiation in service, the AOJ 
should refer the claim to VA's Under Secretary for Benefits 
in accordance with 38 C.F.R. § 3.311(c). 

Accordingly, the case is REMANDED for the following action:


1.  Contact the Defense Threat Reduction 
Agency (DTRA) of the Department of Defense 
to formulate a dose estimate for this 
Veteran based on his presence on the 
Eniwetok Atoll from November 1954 to 
November 1955, which was within six months 
of the termination of Operation CASTLE.

2.  If the Veteran's dose estimate is 
indicative of exposure to radiation in 
service, refer the claim to VA's Under 
Secretary for Benefits in accordance with 
38 C.F.R. 
§ 3.311(c).

3.  Thereafter, readjudicate the issues on 
appeal.  If the determinations remain 
unfavorable to the Veteran, he and his 
representative should be furnished a 
supplemental statement of the case which 
addresses all evidence associated with the 
claims file since the last statement of 
the case.  The Veteran and his 
representative should be afforded the 
applicable time period in which to 
respond.

The Veteran has the right to submit additional evidence and 
argument on the matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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. 2009).



_________________________________________________
Laura H. Eskenazi
Acting 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) (2009).