Citation Nr: 1237997 Decision Date: 11/06/12 Archive Date: 11/16/12 DOCKET NO. 10-25 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for cancer of the larynx. 2. Entitlement to service connection for alopecia including as secondary to cancer of the larynx. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from January 1944 to August 1946. The appeal comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case was subsequently transferred to the RO jurisdiction of the St. Petersburg, Florida RO. The Board in a September 2010 decision denied the appealed claims for service connection for cancer of the larynx and alopecia. The Veteran appealed those denials to the United States Court of Appeals for Veterans Claims (Court), and by a May 2012 Memorandum Decision the Court vacated the Board's denial of those claims in its September 2010 decision, and remanded the issues to the Board for actions consistent with that Memorandum Decision. The claims for service connection for bilateral hearing loss and tinnitus, which were previously before the Board and were remanded by the Board in September 2010 for additional development, were granted by the RO in a January 2011 rating action. There is thus no longer a case in controversy for the Board's appellate consideration as to those claims. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. 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). REMAND The case significantly turns on whether the Veteran's ionizing radiation exposure in service due to participation in occupation of Nagasaki following the nuclear bombing of that city resulted in claimed cancer of the larynx and claimed alopecia. The Court in its May 2012 Memorandum Decision affirmed the Board's September 2010 finding that the Veteran was not entitled to presumptive service connection for his claimed cancer of the larynx under 38 C.F.R. § 3.309(d). (Memorandum Decision, pg. 8). This was an implicit recognition by the Court that the Veteran's cancer of the larynx was not cancer of the pharynx. The Court found the Board's decision deficient for its reliance on the conclusions of the Chief of Public Health and Environmental Hazards Officer (CPHEHO), because the Court found that the CPHEHO had provided an inadequate rationale for his conclusions. Looking to the CPHEHO memorandum in question, dated in December 2008, a relevant explanation contained therein for the conclusion that the Veteran's cancer of the larynx was unlikely to be attributable to his in-service radiation exposure is admittedly rather opaque to the layperson: The Interactive Radioepidemiological Program (IREP) of the National Institute for Occupational Safety and Health (NIOSH) was used to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's cancer of the larynx. (This program is available on the Internet at https://www.niosh-irep.com/). The program calculated a 99th percentile value for the probability of causation of 0.98% (see attachment). The memorandum failed to explain what a "99th percentile value for the probability of causation of 0.98%" means. Based on this opacity of the medical rationale for the CPHEOHO opinion, the Court declared inadequate the medical statement supporting the Board's September 2010 decision, specifically finding that the CPHEOHO "did not provide a rationale for the ultimate conclusion, as required by [38 C.F.R.] § 3.311(c)(1)(ii)." (Memorandum Decision, pg. 10). Thus, because the Court found the CPHEOHO's rationale insufficiently clear or explicative, the case must be returned to the CPHEOHO for explanations for its medical conclusions which are simple enough to allow lay comprehension without the layperson first having to obtain specialized knowledge. Accordingly, the case must be returned to the CPHEOHO for such simplified explanations. Additionally, the Court found that the CPHEHO failed to consider factors as listed in 38 C.F.R. § 3.311(e), including "gender, pertinent family history and employment history," "history of exposure to known carcinogens, radiation exposure prior to and after service, including smoking history," and "other additional information relevant to the causes of the disease." Upon remand, the RO must request this information from the Veteran, prior to returning the case to the CPHEOHO for the requested CPHEOHO addendum opinions and explanations. The Board believes that a social and industrial survey is appropriate for this purpose. Additionally, the Court found the CPHEHO's opinion was deficient for failing to explain why an alternative cancer model was not created, and why the model was not re-run using a newer version of NIOSH-IREP that could have shown a higher probability of causation. These questions must also be addressed by the CPHEHO upon remand. The claim for service connection for cancer of the larynx is inextricably intertwined with the claim for service connection for alopecia, because the scope of alopecia claim includes service connection as secondary to the claimed cancer of the larynx. The Court has held that a claim which is inextricably-intertwined with a second claim which remains undecided and pending before the VA must be adjudicated prior to a final order on that second, pending claim, so as to avoid piecemeal adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The alopecia claim thus must also be remanded, to allow for its readjudication by the RO following development and readjudication of the cancer of the larynx claim. The Veteran's authorized representative submitted an August 2012 letter by a physician practicing in palliative care, who afforded opinions etiologically linking the Veteran's claimed cancer of the larynx and alopecia to his exposure to ionizing radiation in Nagasaki during World War II. In support of this opinion the physician quoted some information about cancer of the larynx, as well as some epidemiologic population study findings of mortalities associated with ionizing radiation, including particularly cancer-related deaths. However, she failed to address the ionizing radiation dosimetry estimates in the Veteran's particular case, or to address the calculated likelihood of attribution of the Veteran's cancer to his ionizing radiation exposure based on those dosimetry estimates, in spite of this data having already been collected and documented in the claims file. The Board has significant difficulty accepting these August 2012 medical opinions purporting to be based on data of effects of ionizing but which fail to address the case-specific data presented for this Veteran. A medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board is nonetheless inclined to entertain these private opinions at least to the extent of asking the CPHEHO to address them upon remand. 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. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of his claims the subject of this remand. 2. With the Veteran's assistance, as appropriate, obtain and associate with the claims file any additional pertinent private and VA treatment records, also in furtherance of the remanded claims. 3. Thereafter, a social and industrial survey of the Veteran should be conducted. The claims file should be provided to the examiner for review prior to the survey. The examiner should conduct appropriate surveys to ascertain the following with regard to the Veteran's exposure to ionizing radiation, his cancer of the larynx, and his alopecia: any pertinent family history, any pertinent employment history, any history of exposure to known carcinogens, radiation exposure prior to and after service, smoking and other tobacco use history, and any additional information relevant to causes of the Veteran's cancer of the larynx and alopecia. 4. Thereafter, the claims file should be returned to the Chief of Public Health and Environmental Hazards Officer (CPHEHO) who provided the December 2008 memorandum, of record. The CPHEHO should be asked to provide an addendum to that memorandum. The CPHEHO should be asked to do the following: (The CPHEHO is advised that this addendum is substantially required by the United States Court of Appeals for Veterans Claims (Court), pursuant to a May 2012 Memorandum Decision, which Memorandum Decision is contained within the claims file.) a. The CPHEHO should review the claims file inclusive of pertinent evidence. In particular the CPHEHO should review the newly obtained social and industrial survey, as well as past medical examinations and medical opinions. b. The CPHEHO should consider the following factors including as obtained from the social and industrial survey: probable dose, relative sensitivity of involved tissue to induction by ionizing radiation of the specific pathology, gender (male), any pertinent family history, the Veteran's age at the time of exposure, time-lapse between exposure and onset of disease, any pertinent employment history, any history of exposure to other known carcinogens, any radiation exposure prior to and after service, smoking and other tobacco use history, and any additional information relevant to causes of the Veteran's cancer of the larynx and alopecia. The CPHEHO should address his consideration of these factors to arrive at the requested opinions. c. The CPHEHO should explain why an alternative cancer model was not created for any relationship between the Veteran's nuclear bomb radiation exposure in Nagasaki and his development of cancer of the larynx. He should also explain why the model was not re-run using a newer version of NIOSH-IREP that could (potentially) have shown a higher probability of causation. d. The CPHEHO should then be asked to provide explanations for all his conclusions provided in his CPHEHO December 2008 memorandum, as well as explanations for any new opinions he provides in this addendum. These explanations must be simple enough to allow lay comprehension without the layperson having first to obtain specialized knowledge. (This last requirement is also dictated by the Court.) e. The CPHEHO is also asked to addressed the opinion and rationale provided by A. A., M.D., in a August 2012 letter. That physician then opined as follows: "It is my medical opinion that [the Veteran's] larynx cancer is as likely as not related to his radiation exposure from the atomic bombings in Japan in WWII. Evidence has confirmed that [the Veteran] was exposed to ionizing radiation from the atomic bomb in Nagasaki. Pharynx cancer is a radiation exposed connected cancer. The pharynx and larynx are the same cell type and continuations of the same area." f. The CPHEHO is also asked to address the opinion by A.A., M.D., also in the September 2012 letter, addressing the Veteran's alopecia. Her opinion is as follows: "[The Veteran's] alopecia or hair loss is also more likely than not related to the radiation exposure from the atomic bombings in Japan during WWII. Evidence as noted above has confirmed that [the Veteran] was exposed to ionizing radiation from the atomic bomb in Nagasaki. Radiation alopecia is a well known side effect of ionizing radiation." g. To reiterate, a rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 5. Thereafter, readjudicate the remanded claims. If any benefit the subject of this remand is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case and afforded the appropriate opportunity to respond thereto. 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). _________________________________________________ J. A. MARKEY 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).