Citation Nr: 1300660 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 02-11 309 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for macular degeneration due to ionizing radiation exposure. 2. Entitlement to service connection for bronchial mucosa associated lymphoma tissue (B-MALT) status post left lung lobectomy due to ionizing radiation exposure (hereinafter "bronchial mucosa"). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to December 1957 and from July 1958 to June 1962. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision of the RO. The matters were previously before the Board in December 2003, July 2007 and February 2010. On those occasions the claims were remanded for further development, adjudication and/or to satisfy an outstanding hearing request. In July 2010, the Board issued a decision that denied the claims of service connection for macular degenerative due to non-ionizing radiation exposure and for bronchial mucosa status post left lung lobectomy due to non-ionizing exposure. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). As will be explained, in an April 2012 Memorandum Decision, the Court affirmed in part and vacated in part the July 2010 decision. The vacated matters were remanded to the Board for further proceedings consistent with the Court's decision. The Veteran originally presented testimony before the Board in June 2003. During the pendency of the appeal, the Veterans Law Judge who conducted the June 2003 hearing left the Board. The Veteran opted for another hearing and presented additional testimony in March 2008 before the undersigned Veterans Law Judge. Both hearing transcripts are of record. The issues of service connection for prostate cancer and residuals of a hepatitis infection have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers them to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND In the July 2010 decision, the Board determined that the claims on appeal had not been raised on the basis of exposure to ionizing radiation and, therefore, adjudication on this basis was not considered. The Board adjudicated the Veteran's claimed service-connected disabilities on the basis of exposure to non-ionizing radiation and denied both claims. In the April 2012 decision, the Court found that the claims of service connection for macular degeneration and bronchial mucosa on the basis of exposure to ionizing radiation had been reasonably raised by the record. In making this determination, the Court pointed to the May 2002 Statement of the Case, which adjudicated the claims as due to ionizing radiation. Therefore, the Court found that the Board's failure to adjudicate the Veteran's claim on this basis was in error, vacated the decision on this basis only, and remanded those claims to the Board. Since the Court concluded that the Veteran's claimed disabilities as due to ionizing radiation were reasonably raised by the record, it also determined that the Board erred in not providing adequate reasons and bases as to why the duty to assist had been met with regard to requesting a DD Form 1141 (Record of Occupational Exposure to Ionizing Radiation) pertinent to the Veteran. The evidence of record shows that the National Personnel Records Center (NPRC) was contacted to request this document. In a June 2000 response, the NPRC indicated that a DD Form 1141 relevant to the Veteran was not located. The Court pointed out that no other efforts were made to locate a DD Form 1141, and the Board presumed there existed no DD Form 1141 relevant to the Veteran based upon the assertion of the Air Force that there was no exposure data regarding the Veteran. Given the Court's determination that the Veteran's claimed disabilities as due to ionizing radiation were reasonably raised by the record and in appellate status, the Board finds that a remand is necessary so that VA may make all necessary attempts to locate a DD Form 1141 pertinent to the Veteran. See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) [VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.] Accordingly, the RO should make an additional attempt to locate any outstanding service personnel records, to include a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). The Court noted that there were instances where these forms were not forwarded to the central repository but were instead maintained in the military medical records or by the local unit. There is no indication that VA requested a search of the military unit records for this document. With regard to the claims of service connection for macular degeneration and bronchial mucosa on the basis of exposure to non-ionizing radiation, the Court affirmed the Board's decision and found that any error alleged as to the denial on this basis was not prejudicial to the Veteran. As such, the issues on appeal have been characterized as set forth hereinabove, and the only claims remaining on appeal are service connection for macular degeneration and bronchial mucosa, claimed as due to exposure to ionizing radiation. Accordingly, these remaining matters are REMANDED to the RO 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) (2012). Expedited handling is requested.) 1. The RO should take all indicated action to contact the NPRC and/or any other appropriate repository of records, and request copies of any outstanding service personnel records to include a DD Form 1141, if available. This should include a search of unit records, medical records, and all other possible avenues for locating a DD Form 1141. All efforts to obtain such records should be documented in the claims folder. Efforts to locate this document should continue until it is determined that further efforts would be futile. 2. After completing all indicated development, the RO should readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).