Citation Nr: 1237276 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 06-28 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for myelodysplasia, to include as due to exposure to ionizing and nonionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from June 1955 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. This case was most recently remanded by the Board in March 2010 for further development. The case has returned to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 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 Board's finds that additional substantive development on the matter of entitlement to service connection for myelodysplasia, claimed as due to exposure to ionizing and non-ionizing radiation is necessary prior to further appellate review of the claim. Specifically, to send the claims file to the Under Secretary of Health for preparation of an estimate of the Veteran's probable dose exposure to ionizing radiation in service as instructed under 38 C.F.R. § 3.311 (2011). The Veteran seeks service connection for MDS. He contends that he was exposed to ionizing radiation when he was stationed in Braumholder, Germany as a radar operator, during which time he used the radar equipment to target sides for the "280mm Atomic Gun," a weapon with nuclear capability. (See www.atomcentral.com/the-atomic-cannon). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & 2011); 38 C.F.R. § 3.303 (2011). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war and anemia and leukemia, both of which are associated with myelodysplasia for the purpose of the development of claim, become manifest to a degree of 10 percent or more within one year from the date of separation from service, service connection will be presumed as a chronic disease. 38 U.S.C.A. §§ 1101, 1111, 1112, 1137 (West 2002) ; 38 C.F.R. §§ 3.307, 3.309(a) (2011). Service connection for a disability claimed as due to exposure to ionizing radiation in service can be established in any of three ways. Davis v. Brown , 10 Vet. App. 209, 211 (1997). First, there are certain diseases that are presumptively service connected in a radiation-exposed veteran under 38 U.S.C.A. § 1112(c) (West 2002) and 38 C.F.R. § 3.309(d) (2011). The term radiation-exposed veteran means a veteran who, while serving on active duty, participated in a radiation-risk activity. The term radiation-risk activity includes participation in a test of a nuclear device or occupation of Hiroshima or Nagasaki, Japan by U.S. forces during the period beginning on August 6, 1945 and ending on July 1, 1946. The term occupation of Hiroshima or Nagasaki, Japan by U.S. forces means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan. Second, service connection can be established under 38 C.F.R. § 3.303(d) (2011) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. The list of radiogenic diseases includes leukemia. 38 C.F.R. § 3.311(b)(2). Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (proof of direct service connection entails proof that exposure during service caused the malady that appears many years later). As noted above, the Veteran contends that he was exposed to ionizing radiation when he was stationed in Braumholder, Germany as a radar operator, during which time he used the radar equipment to target sides for the "280mm Atomic Gun," a weapon with nuclear capability. The Veteran's service personnel and treatment records, as well as any records from The Surgeon General's Office, are unavailable. (See August 2011 VA Memorandum). The Veteran's DD 214 confirms that he served from June 1955 to May 1957, with one year and five (5) months foreign service. The Veteran served with Battery C of the 265th Field Artillery Battalion. His military occupational specialty (MOS) was a "Radar Crewman." In March 2010, the Board remanded the Veteran's claim to afford the Veteran the development set forth in 38 C.F.R. § 3.311. While the Veteran does not meet the definition of a "radiation-exposed veteran" as defined in 38 C.F.R. § 3.309(d)(3), the list of radiogenic disease includes leukemia, as noted above. 38 C.F.R. § 3.311(b). In March 2010, the Board directed the RO to follow the special development procedures set forth in 38 C.F.R. § 3.311. In particular, under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, such as here, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to radiation. These records normally include but may not be limited to the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records will be (bold and italics added for emphasis) forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Once the dose estimate is prepared, before the claim is adjudicated, it must be referred to the Under Secretary of Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). See 38 C.F.R. § 3.311(b)(1). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the veteran's skin cancer resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i) . In this case, the RO did not complete the special development procedures set forth in § 3.311(a). Although the RO contacted the Defense Threat Reduction Agency (DTRA) to verify the Veteran's participation in radiation risk activity, the RO failed to obtain a dose estimate from the Under Secretary for Health, as compelled by the provisions of 38 C.F.R. § 3.311(a)(2)(iii). Consequently, the current case must be sent back to the RO to complete the development required under § 3.311(a) because the Veteran does not contend that he participated in atmospheric nuclear testing or the American occupation of Hiroshima or Nagasaki, Japan. Id. 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) (2011). Expedited handling is requested.) 1. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the Veteran's records concerning his radiation exposure, including any service records, his statements regarding radiation exposure, and information obtained from the DTRA to the Under Secretary for Health for preparation of a dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided). If more information from the veteran is required regarding specifics of his alleged exposure, he should be contacted and asked to provide the information. For the purpose of preparing a radiation dose estimate, the Veteran has reported having been exposed to ionizing radiation when he was stationed in Braumholder, Germany as a radar operator, during which time he used the radar equipment to target sides for the "280mm Atomic Gun," a weapon with nuclear capability. The Veteran's DD 214 reflects that he served from 1955 to May 1957 with one (1) year and five (5) months of foreign service. He served in Battery C of the 265th Field Artillery Battalion as a "Radar Crewman." 2. If the above-requested development results in a positive dose estimate, refer the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). 3. After undertaking any other development deemed appropriate, re-adjudicate the issue on appeal. If any benefit sought is not granted, furnish the veteran and his representative with a Supplemental Statement of the Case (SSOC) and afford him an opportunity to respond before the record is returned to the Board for further review 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. 2011). _________________________________________________ F. JUDGE FLOWERS 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).