Citation Nr: 1306496	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  05-41 712	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for the cause of the Veteran's death.

2.  Entitlement to dependency and indemnity compensation under 38 U.S.C.A. § 1318.

REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs

WITNESSES AT HEARING ON APPEAL

Appellant and C.W. 
ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from September 1951 to September 1958.  He died in October 2002.  The Appellant is the Veteran's surviving spouse.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2004 of a Department of Veterans Affairs (VA) Regional Office (RO).  

In April 2007, the Appellant appeared at a hearing before a Decision Review Officer.  A transcript of the hearing is in the record.  

In May 2009, the Appellant withdrew her request for a hearing before the Board.  

In June 2009, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

The Appellant asserts that the Veteran's fatal myelodysplastic syndrome was precancerous or pre-leukemia and was caused by the Veteran's exposure to ionizing radiation during service.  

The record shows that the Veteran was stationed at Enewetak Atoll in 1955 and 1956, but the Defense Threat Reduction Agency reported that the Veteran did not meet the criteria for designation as a radiation-exposed Veteran under 38 C.F.R. § 3.309 and a dose estimate of the amount of exposure to ionizing radiation, if any, was not provided.  
As the evidence of record is insufficient to decide the claims under the applicable theories of service connection, including under 38 C.F.R. § 3.311, further development under the duty to assist is needed. 

Accordingly, the case is REMANDED for the following action:

1.  Arrange to have the Veteran's file reviewed by a VA oncologist to determine:

Whether myelodysplastic syndrome is a "radiogenic disease" under 38 C.F.R. § 3.311(b)(2), that is, a disease that may by induced by ionizing radiation as opposed to radiation therapy.  VA recognizes that cancers are "radiogenic diseases," that is, induced by ionizing radiation under 38 C.F.R. § 3.311(b)(2), including all forms of leukemia, except chronic lymphatic (lymphocytic) leukemia?

In formulating an opinion, the VA physician is asked to consider records of Kaiser Permanente, page numbered 13 (dated in August 2002) and pages 20 to 28 (dated in July 2002) and the Kaiser Permanente pathology report of a bone marrow biopsy pages numbered 1 to 2 (dated in July 2002). 

2.  If the medical evidence establishes that myelodysplastic syndrome is a "radiogenic disease" or a type of cancer under 38 C.F.R. § 3.311(b)(2), forward the Veteran's file to the VA Under Secretary for Health pursuant to 38 C.F.R. § 3.311(a)(2)(iii) for preparation of a dose estimate and then for review by the VA Under Secretary for Benefits under 38 C.F.R. § 3.311(c).



3.  After the above development is completed, adjudicate the claim considering 38 C.F.R. § 3.311.  If the benefit sought on appeal is denied, furnish the Appellant and her representative a supplemental statement of the case and return the case to the Board.

The Appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims 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).



_________________________________________________
George E. Guido Jr.
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).