Citation Nr: 1237205 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-23 136A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for multiple myeloma, including as a result of exposure to ionizing radiation REPRESENTATION Appellant represented by: Robert Legg, Attorney WITNESS AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1979. This matter originally came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Jackson, Mississippi, but came to the Board from the RO in Cleveland, Ohio. The Veteran's claim was denied by the Board in a June 2010 decision. The Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court vacated the Board's decision and remanded the claim for additional development. In accordance with the Court's instructions, the appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND First, it is noted that after the March 2012 Memorandum Decision the Veteran submitted his own dose estimate, which was prepared by a health physicist. As a result the procedures set forth in 38 C.F.R. § 3.311(a)(3) must be followed to reconcile the competing dose estimates prepared by the Chief Public Health and Environmental Hazards Officer and those of the private health physicist. In the Memorandum Decision, the Court questioned the Chief, Public Health and Environmental Hazards Officer's partial reliance on a National Institute for Occupational Safety and Health (NIOSH) Interactive Radioepidemiological Program (IRP) computer program that calculated a 99th percentile value for the probability for causation of the Veteran's multiple myeloma at .76%. (It appears that the Chief was acting as a designee of the Under Secretary for Health.) The Court held that it was not clear that the NIOSH IRP incorporates or utilizes all the factors set forth in 38 C.F.R. § 3.311(e) when making its computations. The Court implied that use of the computer program to arrive at a probability of causation was unacceptable unless the program itself incorporated all of the factors set forth in 38 C.F.R. § 3.311(e). It was not enough that the Undersecretary for Benefits considered the factors in 38 C.F.R. § 3.311(e), but this official needed to actually explain the algorithm used by the NIOSH IRP when preparing the opinion concerning the probability that the Veteran's multiple myeloma was caused by in-service radiation exposure. The Court also held that it was required that an expert consider certain treatise evidence that was submitted by the Veteran after the Undersecretary for Benefits opinion had already been obtained before rendering a new opinion concerning the probability that the Veteran's in service radiation exposure caused his cancer. Accordingly, the case is REMANDED for the following action: 1. In accordance with 38 C.F.R. § 3.311(a)(3), refer the competing dose estimates submitted by the representative and prepared by the Chief, Public Health and Environmental Hazards Officer, and all supporting documentation, to an independent expert selected by the Director of the National Institutes of Health. The independent expert should prepare a separate radiation dose estimate for consideration in the adjudication of the claim. 2. After the independent expert's opinion is obtained, resubmit this claim to the Undersecretary for Benefits with a direction that he obtain an advisory medical opinion from the Undersecretary for Health. The Undersecretary for Health must consider all of the regulatory factors set forth in 38 C.F.R. § 3.311(e). These are (1) the probable dose, in terms of dose, type, rate, and duration as a factor in inducing the disease, taking into account any known limitations in the dosiometry devices employed in its measurement or the methodologies employed in its estimation; (2) the relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology; (3) the Veteran's gender and pertinent family history; (4) the Veteran's age at the time of exposure; (5) the time lapse between exposure and onset of the disease; and (6) the extent to which exposure to radiation, or to other carcinogens, outside of service may have contributed to the development of the claim. To the extent that the Undersecretary for Health relies on the National Institute for Occupational Safety and Health (NIOSH) Interactive Radioepidemiological Program (IRP), he or she must explain the algorithms used by that program, including a discussion of whether and how it accounts for the factors set forth in 38 C.F.R. § 3.311(e). The Undersecretary for Health must also review the treatise evidence submitted by the Veteran and include a discussion of this evidence when preparing an opinion as to the likelihood that the Veteran's multiple myeloma was caused by in service radiation exposure. Attention is directed to the Court's decision for factors to be included in the discussion. 3. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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. 2011). _________________________________________________ MICHAEL D. LYON 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) (2011).