Citation Nr: 1307706 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-43 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of prostate cancer, to include as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from February 1953 to April 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a September 2012 decision, the Board remanded this issue for additional development. A Travel Board hearing was held at the RO in December 2012 before the undersigned Acting Veterans Law Judge and a copy of the hearing transcript has been added to the record. 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). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the Veteran's claim of service connection for residuals of prostate cancer, to include as due to ionizing radiation exposure. The Board notes that the Veteran has contended that in-service ionizing radiation exposure while a crewmember of a B-36 bomber which collected radioactive material in flight while on active service caused or contributed to his current prostate cancer residuals. The Board observes in this regard that a Veteran may establish service connection for a disability claimed to be attributable to ionizing radiation exposure during service in one of three different ways. McGuire v. West, 11 Vet. App. 274, 277 (1998); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir.1997). First, the Veteran could demonstrate that his disease is among the 15 types of cancer which are presumptively service connected pursuant to 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309. Second, a Veteran may show that the disease is on the list of "radiogenic diseases" enumerated in 38 C.F.R. § 3.311(b) which will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection of a disease claimed to have been caused by ionizing radiation can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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) (i), (ii). In all other claims, 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 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). Under 38 C.F.R. § 3.311(b) , when a Veteran is shown to have been exposed to ionizing radiation, and the Veteran subsequently developed a radiogenic disease, and such disease first became manifest five years or more after exposure to radiation, the claim must be referred to the Under Secretary for Benefits for further consideration. The Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c) (1). After referring to the factors listed under 38 C.F.R. § 3.311(e), the Under Secretary for Benefits must determine the likelihood that the Veteran's exposure to radiation in service resulted in his radiogenic disease. 38 C.F.R. § 3.311(c). In June 2011, the Director of Compensation and Pension Service sent a request to the VA Under Secretary for Health to review available records, prepare a dose estimate, and provide a medical opinion as to whether the Veteran's prostate cancer resulted from exposure to radiation in service. In June 2011, the Director of Environmental Agents Service (DEAS) stated that it was unlikely that the Veteran's prostate cancer could be attributed to ionizing radiation in service. The DEAS Memorandum referenced a March 2010 Memorandum from the Air Force Technical Application Center (AFTAC) which confirmed that the Veteran was involved in a radiation risk activity by participating in a non-U.S. atmospheric nuclear debris collection activity as an aircrew member aboard a B-36 aircraft. However, it was found that the Veteran's dose estimate was at a level where the risks of health effects were either too small to be observed or nonexistent. As a result, the Director of VA Compensation and Pension Service provided an advisory opinion indicating that there was no reasonable possibility that the Veteran's prostate cancer could be attributed to his occupational exposure to ionizing radiation in service. The Board notes that at his December 2012 hearing, the Veteran also contended that despite the low dose determination, his prostate cancer should be granted on a direct service connection basis as various submitted articles have noted the relation between cancers and radiation exposure similar to the type of exposure that the Veteran experienced. He also claimed that he was exposed to radiation from bombs he helped load onto planes and other incidents aside from the conceded incident where he participated in a non-U.S. atmospheric nuclear debris collection activity as an aircrew member aboard a B-36 aircraft. To date, the Veteran has not been provided with a VA examination to determine the nature and etiology of his prostate cancer residuals. The Board notes that VA's duty to assist includes providing Veterans with examinations where necessary. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159. 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) (2012). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Then, schedule the Veteran for appropriate examination to determine the nature and etiology of his residuals of prostate cancer. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that residuals of prostate cancer are related to active service or any incident of service. A complete rationale must be provided for any opinions expressed. The examiner is advised that the Veteran has contended that his current residuals of prostate cancer are due to his conceded in-service ionizing radiation exposure or otherwise are related to active service. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE Acting 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).