Citation Nr: 1300403 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-16 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1972, and from March 1981 to March 1995. He died on June [redacted], 2005. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in Muskogee, Oklahoma. In September 2008, the appellant testified at a videoconference Board hearing before a Veterans Law Judge who is no longer employed by the Board. In May 2012, the appellant was provided with an opportunity to request a new Board hearing. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In October 2012, the appellant testified at another videoconference Board hearing at the RO located in Muskogee, Oklahoma before the undersigned Veterans Law Judge. Transcripts of both proceedings have been associated with the claims file. In December 2008, December 2009, and July 2012, the Board remanded the appellant's claim for further development. Such development has been completed and associated with the claims file, and this matter is returned to the Board for further review. 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 Veteran served on active duty from February 1966 to February 1972, and from March 1981 to March 1995. The Veteran died in June 2005. The death certificate shows that the immediate cause of death was esophageal cancer. The appellant is his widow. A marriage certificate reflects that the couple married in October 1977, and an August 2005 administrative decision reflects that their marriage is considered valid. The appellant claims that the cause of the Veteran's death is related to service. Specifically, she asserts that the Veteran incurred esophageal cancer as a result of exposure to herbicides during his Vietnam service or, in the alternative, as a result of exposure to ionizing radiation during his service in Germany in the 1980s. With regard to the alleged herbicide exposure, as an initial matter, the Board acknowledges that the Veteran's DD Form 214 reflects that he served in the Republic of Vietnam from May 1969 to May 1970. Therefore, herbicide exposure is conceded. See 38 C.F.R. § 3.307(a)(6)(iii) (2012). Esophageal cancer, however, is not one of the diseases for which presumptive service connection may be granted under 38 C.F.R. § 3.309(e) based on herbicide exposure. The Board acknowledges that the Veteran's representative essentially requested at the October 2012 Board hearing that an independent medical expert opinion be obtained to address the issue of direct service connection due to herbicide exposure. See Transcript at 7; see also Combee v. Brown, 5 Vet. App. 248 (1993). The Board notes, however, that there is no competent evidence of record tending to indicate that the Veteran's esophageal cancer may be related to herbicide exposure, albeit the Board does acknowledge the appellant's lay statements as well as certain articles submitted by the appellant (which do not indicate that esophageal cancer may be etiologically related to herbicide exposure). In fact, the Board notes that the Secretary of Veterans Affairs has specifically determined based on reports by the National Academy of Sciences (NAS) that there is not a positive association between herbicide exposure and esophageal cancer. See 75 FR 32540 (June 8, 2010). Also, the Board acknowledges that the appellant's representative submitted at the Board hearing a copy of a prior Board decision in another case that granted service connection for esophageal cancer as a result of herbicide exposure. The Board notes, however, that prior Board decisions are not precedential in this matter, and in any event, the facts in that case are differ greatly from the present appeal herein because in that other case, the evidence of record included a positive private medical opinion, whereas in this case, there is no medical opinion of record tending to link the Veteran's esophageal cancer to service. Therefore, the Board finds that a remand for an independent medical expert opinion to address this theory of entitlement based on herbicide exposure is not required. The Board also acknowledges that the appellant alleged for the first time at the October 2012 Board hearing, and by way of subsequently submitted lay and buddy statements dated in October 2012, that the Veteran incurred esophageal cancer as a result of exposure to ionizing radiation while serving in Germany in the 1980s. Among other buddy/lay statements, in an October 2012 statement, a buddy of the Veteran, D.K., wrote that he served with the Veteran in the 205th Assault Support Helicopter Company in Germany in the 1980s flying nuclear surety missions, which D.K. wrote involved tying down nuclear weapons. A similar October 2012 buddy statement from J.D. reflects that he explained that the nuclear surety mission duties involved transporting nuclear warheads from different bunker complexes to Air Force bases around Europe. 38 C.F.R. § 3.309(d) provides presumptive service connection for certain listed diseases, including cancer of the esophagus, that manifest in a "radiation-exposed veteran," which generally includes (A) participants in certain atmospheric nuclear test sites, (B) certain service in Hiroshima, (C) certain internment as a prisoner of war in Japan during World War II, (D) certain service in two gaseous diffusion plants in the U.S. or the area known as K25, and (E) service in a capacity and location that, 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 42 U.S.C.A. 7384 et. seq. In this case, however, there is no evidence, and the appellant has not asserted, that the Veteran's service would meet the requirements of 38 C.F.R. § 3.309(d)(A)-(E) so as to constitute a "radiation-exposed veteran" for 38 C.F.R. § 3.309(d) purposes. Therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(d) are not for application. 38 C.F.R. § 3.311 provides certain development procedures where a veteran develops a listed "radiogenic disease," including esophageal cancer if manifested five years or more after exposure, and it is contended that the radiogenic disease is the result of exposure to ionizing radiation. For claims other than those involving alleged participation in atmospheric nuclear testing or certain alleged Hiroshima or Nagasaki participation, a request will be made for any available records concerning the veteran's exposure to radiation, which may include the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, and other records that may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible. If it is determined that the veteran was exposed to ionizing radiation as claimed and that the veteran developed a "radiogenic disease" within the prescribed time frame, the claim will be referred to the Under Secretary for Benefits for further consideration. As discussed above, the Veteran's death certificate reflects that he died as a result of esophageal cancer, a "radiogenic disease" for 38 C.F.R. § 3.311 purposes, that the appellant alleges was incurred due to ionizing radiation exposure from the Veteran's duties in Germany flying nuclear surety missions. Therefore, the Board finds that, regrettably, another remand is necessary so that the development as prescribed in 38 C.F.R. § 3.311 may be undertaken by the RO, including but not limited to obtaining a copy of the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, the Veteran's service personnel records, and any other records that may contain information pertaining to the Veteran's radiation dose in service, and then forwarding such records to the Under Secretary for Health for preparation of a dose estimate to the extent feasible. In addition, the Board notes that the Veteran's claim was previously remanded in December 2008 and December 2009 so that the RO could obtain copies of the Veteran's June 2005 final hospitalization records from the Hillcrest Medical Center. Pursuant to the Board's most recent December 2009 remand directive, later that month, the RO requested an updated Form 21-4142 from the appellant (for Hillcrest) as well as any copies of the June 2005 Hillcrest Medical Center records in the appellant's possession. In response, the appellant submitted a handful of June 2005 records from Hillcrest, as well as an updated Form 21-4142. The RO did not, however, request copies of any outstanding June 2005 hospitalization records directly from Hillcrest. In that regard, the Board acknowledges that the appellant submitted some June 2005 records from the Hillcrest facility, including a discharge summary reflecting that the Veteran was hospitalized at the facility from June 15, 2005 until his death on June [redacted], 2005. At the same time, the Board notes that she nevertheless provided another updated Form 21-4142. More importantly, the Board notes that at the September 2008 Board hearing, the Veteran's representative noted that there was a large volume of relevant records at Hillcrest (apparently dated in June 2005) that would have cost $400 to have photocopied. See Transcript at 6. While the Board acknowledges that VA may not pay $400 to obtain such records, nevertheless, the Board finds that a remand is in order so that the RO may request the records directly from Hillcrest. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Request copies of any outstanding private treatment records of the Veteran dated in June 2005 from the Hillcrest Medical Center and associate them with the claims file; to that end, request an updated Form 21-4142 from the appellant. If any such records are found to be unavailable, this should be specifically noted in the claims file. 2. After the above development has been completed, obtain copies of (a) the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, (b) his service personnel records, and (c) any other records that may contain information pertaining to the Veteran's radiation dose in service. Then, forward such records to the Under Secretary for Health for preparation of a dose estimate to the extent feasible. 3. Then, readjudicate the appellant's claim. If the claim remains denied, the appellant should be provided with a Supplemental Statement of the Case (SSOC). After the appellant and her representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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. 2012). _________________________________________________ BETHANY BUCK 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) (2012).