Citation Nr: 1312486 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 08-23 499 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for leukemia. 2. Entitlement to service connection for leukemia, chronic myelogenous leukemia (CML), myeloproliferative disorder, polycythemia vera, and panhyperplasia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from June 1958 to February 1962 and from February 1963 to December 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the RO. In August 2009, the Veteran testified before a Decision Review Officer at the RO. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran filed Substantive Appeals (VA Forms 9) in September 2012, with regard to his claims for an earlier effective date for service connection for coronary artery disease and service connection for skin carcinoma. In January 2013, the RO informed the Veteran that these were not timely. The Veteran has not responded or expressed any indication that he wishes to appeal the determination that his documentation was not timely. Therefore, these issues are not before the Board. The reopened claim of service connection for leukemia, CML, myeloproliferative disorder, polycythemia vera, and panhyperplasia is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a June 2003 rating decision, the RO denied the claim of service connection for leukemia; the Veteran was notified of this decision and apprised of his appellate rights but did not perfect a timely appeal. 2. The evidence received since the June 2003 rating decision is neither cumulative in nature nor repetitive of that previously addressed and relates to a previously unestablished fact that tends to substantiate the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for leukemia. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Since the action taken hereinbelow is favorable to the appellant, further discussion of VCAA is not required at this time. II. Legal Criteria In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). III. Analysis In a June 2003 rating decision, the RO denied the Veteran's claim of service connection for leukemia on the basis that there was no confirmed diagnosis of this disorder or evidence that he was exposed to radiation during service. The evidence of record at the time of this decision included the Veteran's service treatment records and responses from the Army, the Defense Threat Reduction Agency (DRTA) and the National Personnel Records Center (NPRC) that no evidence of the Veteran's exposure to radiation was found. The Veteran was notified of this decision and apprised of his appellate rights but did not perfect a timely appeal. In order to reopen this claim, new and material evidence must be submitted. 38 U.S.C.A. § 5018; 38 C.F.R. § 3.156. In September 2005, the Veteran petitioned to reopen his claim. In an April 2006 rating decision, the RO determined that new and material evidence has not been received to reopen the claim of service connection for leukemia. The Board finds the evidence submitted since the June 2003 rating decision to be new and material. The evidence added to the claims file contains a diagnosis of CML. Furthermore, the Veteran has provided additional information regarding his radiation exposure during service, in December 2005 and February 2006 written statements; December 2005, January 2006, and February 2006 written statements from fellow servicemembers; and his August 2009 RO hearing testimony. The additional material includes new evidence that is neither cumulative nor redundant in nature. This evidence is material because it addresses previously unestablished facts that tend to substantiate the claim. This evidence tends to suggest that the Veteran had a diagnosis related to leukemia and is more specific information regarding his exposure to radiation. In conclusion, the Board finds that new and material evidence has been received to reopen the claim of service connection for leukemia. ORDER As new and material evidence was received to reopen the claim of service connection for leukemia, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND The Veteran asserts that his leukemia is due to exposure to ionizing radiation during service. The evidence of record also suggests that the Veteran had diagnoses of CML, myeloproliferative disorder, polycythemia vera, and panhyperplasia, which might be precursors to a leukemia diagnosis. See VA examination report, October 2010. Further development needs to be conducted relative to the Veteran's assertion that he was exposed to ionizing radiation during service. His DD Form 214 shows that he was a nuclear weapons technician. In written and oral statements, the Veteran has asserted that he worked with nuclear weapons for at least fourteen years during service. The RO has contacted the DTRA, which indicated that the type of exposure alleged by the Veteran was outside its purview and referred the RO to the Proponency Office for Preventive Medicine in San Antonio. In January 2006, the RO contacted this office. In a February 2006 response, this office responded that it needed more documentation from VA before making a determination as to whether the Veteran had exposure to ionizing radiation. The Proponency Office did not specify what this documentation entailed, and the RO did not seek further clarification. In December 2009, the Veteran returned a questionnaire to the RO regarding the specifics of his alleged radiation exposure during service that was blank. However, he attached a written statement detailing his service. This statement was given no further attention by the RO. On remand, the RO must take all of the information provided by the Veteran and his fellow servicemembers and submit it to the Proponency Office for Preventive Medicine in San Antonio. If that office still requires more information, the RO must determine what this is specifically and attempt to provide it, soliciting the Veteran's help when necessary. In October 2010, the Veteran was afforded a VA examination regarding the issue on appeal. After examining the Veteran, the examiner diagnosed myeloproliferative disorder and polycythemia vera. The examiner opined that these were as likely as not related to service. However, the rationale was based upon a study of veterans who were exposed to nuclear tests. That is not the case here. The Veteran has not alleged, nor does the evidence show, that he participated in such tests. Instead, the Veteran has stated, and his service records confirm, that he worked as a nuclear weapons technician for a number of years during service. Therefore, the rationale contained in this examination report is not adequate, and an additional opinion must be obtained. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the RO should contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any outstanding VA or non-VA treatment records referable to treatment of leukemia or any related disorders. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him to identify all sources of VA and non-VA medical treatment received for the claimed leukemia and related disorders. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain any additional evidence. The letter should invite the appellant to submit any pertinent medical evidence or treatment records in support of his claim. In any event, the RO should obtain all records pertinent to the Veteran from VA in Albuquerque, New Mexico, dated from August 2011 to the present. 2. The RO should contact the Proponency Office for Preventive Medicine in San Antonio and submit all information provided by the Veteran and his fellow servicemembers regarding his exposure to radiation during service. If the Proponency Office requests more information, the RO should ensure that it details what information is needed and provide it. To the extent that it is necessary, assistance from the Veteran must be solicited. The RO should take all other measures necessary for determination if the Veteran was exposed to radiation during service and, if so, how much. 3. The RO should schedule the appellant for a VA examination to determine the nature and likely etiology of the claimed leukemia, CML, myeloproliferative disorder, polycythemia vera, and panhyperplasia. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner in this regard should elicit from the appellant and record a complete clinical history referable to the claimed diseases. After reviewing the entire record and examining the appellant, the VA examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that any currently identified leukemia, CML, myeloproliferative disorder, polycythemia vera, and/or panhyperplasia was due to an event or incident of service, to include as due to claimed exposure to radiation. The examiner should accept as credible all assertions made by the Veteran as to his work with nuclear weapons during service. The examiner is on notice of the opinion contained in the October 2010 VA examination report that, while it appears positive, is based upon studies conducted of people who were present for actual nuclear tests. The Veteran was not present for any kind of nuclear tests. The examiner should provide a rationale for all conclusions. If the examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, the examiner should indicate this in the report. 4. After completing all indicated development, the RO should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the appellant and his representative and they should be afforded a reasonable opportunity 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 Department of Veterans Affairs