Citation Nr: 1031544 Decision Date: 08/23/10 Archive Date: 09/01/10 DOCKET NO. 07-14 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for chronic peripheral neuropathy of the upper and lower extremities with loss of sense of taste and smell and equilibrium, and Dupuytren's contractures. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had active service from December 1954 to December 1958. This matter comes before the Board of Veterans' Appeals (Board) from a December 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The RO has found that the Veteran's service treatment records and service personnel records are unavailable. Where the service treatment records are unavailable, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The medical evidence on file indicates that the Veteran has some form of a chronic neurological disorder. There have been multiple diagnoses, including Charcot-Marie-Tooth disease, chronic inflammatory demyelinating polyneuropathy (CIDP), and even vascular changes suggestive of diabetes mellitus. Most of the clinical histories on file relate the onset of the Veteran's neurological symptoms back in time to the mid to late 1990s. However, a June 2003 VA outpatient treatment (VAOPT) record indicates that the Veteran had had a stroke 20 years earlier, while a March 2004 VAOPT record indicates that he had had a stroke 40 years earlier. In this regard, a 1998 clinical record from Shands Hospital in Jacksonville, Florida, noted findings indicative of an old right cerebellar infarct. The Veteran has reported that his treating VA physician has indicated that the Veteran's chronic neurological disorder was as likely as not caused by the Veteran's inservice radiation exposure. In this regard, the Veteran has submitted (together with a waiver of initial RO consideration) a February 2006 statement of a private physician in which it was reported that the Veteran was being treated for idiopathic peripheral neuropathy. The Veteran had reported a history of inservice radiation exposure. It was possible that his radiation exposure contributed to his development of peripheral neuropathy. Service connection for disability due to inservice ionizing radiation exposure can be shown by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, certain types of cancer are presumptively service connected where a person is a "radiation- exposed veteran" which is defined at 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is otherwise shown that disability, even if first diagnosed after service, is the result of inservice ionizing radiation exposure. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As to inservice ionizing radiation exposure, his only allegation is that he was exposed to radar, which he feels is a form of ionizing radiation. Radar equipment emits microwave-type non-ionizing radiation, which is not subject to review under the statutory and regulatory scheme for claims based on exposure to ionizing radiation. The Court of Appeals for Veterans Claims (Court has taken judicial notice that naval radar equipment emits microwave-type non- ionizing radiation which is not subject to review under the ionizing radiation statute and regulations. Rucker v. Brown, 10 Vet. App. 67 (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). Various forms of cancer as well as tumors of the brain and central nervous system are listed as a radiogenic disease under 38 C.F.R. § 3.311(b)(2), for the provisions of claim development. However, 38 C.F.R. § 3.311(a) specifically states that the regulatory provisions apply when it is claimed that a radiogenic disease is the "result of exposure to ionizing radiation in service." Since exposure to radar is not exposure to ionizing radiation, the provisions of 38 C.F.R. § 3.311 do not apply. In this regard, it is not clear that the Veteran informed the private physician who rendered a favorable medical opinion that the Veteran's inservice exposure was to a form of non-ionizing radiation. In the Informal Hearing Presentation it was requested, in light of the absence of the service treatment records and the favorable private medical opinion, that a medical opinion be obtained addressing the possible nexus between the Veteran's inservice non-ionizing radiation exposure and his development of a chronic neurologic disorder. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Contact the Veteran and request that he provide as much information as possible concerning his postservice treatment for a cerebral event (or stroke). This should include the inclusive dates of all treatment, observation, evaluation, and hospitalization for such event and all follow-up treatment, as well as the names and addresses of all treating physicians and treating facilities. Upon receipt of the appropriate release, request all private treatment records indicated, if any, and associate all received with the file. If any request for private treatment records is unsuccessful, notify the Veteran appropriately. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e) (2009). 2. The Veteran should be advised to contact his treating VA physician to obtain a medical opinion concerning the etiology, time of onset, and cause of his claimed neurological disorder, to include whether it is as likely as not related to inservice exposure to radar. 3. Afford the Veteran a VA examination to address the etiology of the claimed chronic peripheral neuropathy of the upper and lower extremities with loss of sense of taste and smell and equilibrium, and Dupuytren's contractures. The examiner must have access to and review the claim folder for the Veteran's pertinent medical history. All necessary testing should be done and the examiner should review the results of any testing prior to completion of the examination report. The examiner is asked to express an opinion as to whether the claimed neurological disorder is at least as likely as not related to the Veteran's period of service, to include inservice exposure to radar. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and must provide the rationale therefor. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may result in the denial of the original claim for service connection. 4. To help avoid future remand, VA must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, then appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After the above development has been completed, readjudicate the claim. If the benefit sought remains denied, furnish the Veteran, and his representative, a Supplemental Statement of the Case (SSOC) and return the case to the Board. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ DEBORAH W. SINGLETON 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).