Citation Nr: 1123061 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 07-31 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and her son ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had active service from August 1963 to July 1976. He died in February 1996; the appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The appellant and her son testified at a hearing in Washington, D.C., before the undersigned Acting Veterans Law Judge. A transcript of that hearing is on file. Dependency and Indemnity Compensation (DIC) is awarded under either 38 U.S.C.A. § 1310 (service connection for the cause of a Veteran's death) or under 38 U.S.C.A. § 1318(b) (if a Veteran was continuously rated totally disabled for a period of 10 or more years immediately preceding death). See generally Barela v. Shinseki, 584 F.3d 1379 (Fed. Cir. 2009). Although the May 2006 rating decision being appealed also denied entitlement to DIC under 38 U.S.C.A. § 1318, this denial was not appealed and so is not before the Board. The issue of entitlement to burial benefits has been raised by the record but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 Board finds further development is required before the appeal can be adjudicated. Per the death certificate, the cause of the Veteran's death was astrocytoma of the brain. There was no autopsy. At his death the Veteran was not service-connected for any disability and had no pending, unadjudicated claim. His military occupational specialties as listed on his DD-214s were radio repairman, radar technician, and tactical data systems technician. An April 1965 entry in service treatment records (STRs) shows the Veteran was involved in the repair and maintenance of microwave equipment. At the February 2011 hearing the appellant testified that brain cancer was first diagnosed in 1995. She believed his fatal brain tumor was caused by inservice exposure to radiation as the result of the performance of his duties. DD Form 1141, Record of Exposure to Ionizing Radiation, shows the Veteran was exposed to ionizing radiation while stationed in Yuma, Arizona, from July to November 1965. During that time he incurred an accumulated total lifetime dose of .332 rem, with a permissible lifetime level being 10 rems. This record indicates that he had had to wear a "film" badge from June 1965 to through April 1966. 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). Radar equipment emits microwave-type non-ionizing radiation that 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 that 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). In other words, because radar emissions are not a form of ionizing radiation, the provisions of 38 C.F.R. § 3.311 do not apply to exposure to such emissions. However, in this case the STRs clearly show that the Veteran was exposed to ionizing radiation during his active service from July to November 1965, even though the source of such ionizing radiation was not specified. In this regard, 38 C.F.R. § 3.309(d)(1) provides that the diseases listed in § 3.309(d)(2), which includes cancer of the brain, shall be service-connected if they become manifest in a "radiation-exposed" veteran as provided in § 3.309(d)(3), if the rebuttable presumption provisions of § 3.307 are met. In turn, 38 C.F.R. § 3.309(d)(3)(i) provides that a "radiation exposed" veteran is one who participated in a "radiation-risk activity." The term "radiation-risk activity" is defined, in pertinent part, at 38 C.F.R. § 3.309(d)9(3)(ii) as onsite participation in atmospheric nuclear detonations; internment in Japan; service at a gaseous diffusion plant in Paducah, Kentucky; service at Portsmouth, Ohio, or Oak Ridge, Tennessee; and service before January 1974 on Amchitak Island, Alaska. Also included as a "radiation-risk activity" is "[s]ervice in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384l(14))." See 38 C.F.R. § 3.309(d)(3)(ii)(E) (2010). In this case the nature of the Veteran's inservice exposure to ionizing radiation is not clear, although when exposed to ionizing radiation he was apparently not serving in Paducah, Kentucky; Portsmouth, Ohio; Oak Ridge, Tennessee; or Amchitak Island, Alaska. Accordingly, it must be clarified whether the Veteran had in-service ionizing radiation exposure in a capacity that qualifies for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. Also, the Board observes that 38 C.F.R. § 3.311(b)(2)(xx) provides that tumors of the brain are radiogenic diseases. 38 C.F.R. § 3.311(a) provides that in all "claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in [38 C.F.R. §§ ]3.307 or 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses." 38 C.F.R. § 3.311(a)(2)(iii) sets forth the procedure for obtaining records concerning inservice ionizing radiation exposure not due to atmospheric nuclear testing or Japanese internment. Moreover, when it is determined that there was such exposure from "other activities as claimed" and a radiogenic disease develops, and it first manifests within the periods specified in 38 C.F.R. § 3.311(b)(5), the claim will be referred to the Under Secretary for Benefits in accordance with 38 C.F.R. § 3.311(c). 38 C.F.R. § 3.311(b)(5)(iv) provides, as applicable in this case, that cancers other than those listed at 38 C.F.R. § 3.311(b)(v)(i) thru (iii) (and a brain tumor is not listed therein) must become manifest 5 years or more after exposure. Because in this case the Veteran was exposed to ionizing radiation during service, whatever the source, and his fatal brain tumor first manifested in 1995, more than 5 years after his exposure, there must be compliance with the procedures in 38 C.F.R. § 3.311. Accordingly, the case is REMANDED for the following action: 1. The RO should take the appropriate steps to determine whether the Veteran served "in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000" within the meaning of 38 C.F.R. § 3.309(d)(3)(ii)(E) (2010). 2. The RO should also consider the claim under the provisions of 38 C.F.R. § 3.311, to include securing any additional records needed to obtain a dose estimate, and referral of the case to the Under Secretary of Benefits. 3. Thereafter, the RO should readjudicate the claim. If it is not granted, issue the appellant and her representative a Supplemental Statement of the Case to which they must be given the appropriate period of time to respond before returning the case to the Board for further appellate consideration. By this remand the Board expresses no opinion as to any ultimate outcome warranted. 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. 2010). _________________________________________________ JOHN H. NILON 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) (2010).