Citation Nr: 1312498 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-14 570 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for myelodysplastic syndrome with anemia, also claimed as leukemia, for accrued benefit purposes. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from August 1946 to July 1949 and from January 1950 to June 1967. He died in August 2005. The appellant is the Veteran's surviving spouse. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision by the RO in Jackson, Mississippi. The RO in St. Paul, Minnesota currently has original jurisdiction over the appellant's claim. The appeal is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND The death certificate indicates that the Veteran died in August 2005 as a result of acute myelogenous leukemia. The appellant argues that the Veteran's leukemia was the result in-service exposure to ionizing radiation. For the following reasons, the Board finds that this case must be remanded to ensure that the appellant is accorded full compliance with the statutory duty to assist. The evidence of record includes the Veteran's DD 1141, Record of Exposure to Ionizing Radiation. This document provides an inclusive date of November 6, 1962 and lists the type of radiation exposure as gamma. While the dose and accumulative total dose section of the form are blank, the DT-60 reading is listed as 15R. In March 2007, the RO contacted the US Air Force Medical Operation Agency, Radiation Protection Division, in an attempt to obtain additional information on the Veteran's alleged ionizing radiation exposure. In an April 2007 response, the agency stated that it was unable to find any "external or internal exposure data" for the Veteran. The April 2007 letter from Chief of the Radiation Protection Division also stated that the DT-60 badge referenced in the Veteran's DD 1141 "was commonly distributed to Air Force personnel working in nuclear capable organizations for medical readiness purposes in the event of a nuclear attack." It was noted that "the reading of 15R indicates a 'baseline' reading, as individual dosimeters had varying baseline response from the manufacturer" and that these dosimeters were read periodically to re-baseline the device since the dosimeters could not be 'zeroed.' As the dosimeter had a "very high detection threshold" they were not used to monitor occupational exposures. In her April 2009 Substantive Appeal, the appellant argued that the Veteran was exposed to radiation in 1962. In a February 2010 statement, the Veteran's son reported that his father had been "in the nuclear weapons assembly building watching an assembly exercise and something had gone wrong." He recalled being informed that his father had received "a significant dose of radiation." Here, the Veteran's service personnel records document that he was assigned to the munitions maintenance squadron at Ft. Beale Air Force Base in 1962. A performance evaluation from June 1963 documents that the Veteran had served as a First Sergeant and was responsible for supervising organizational administrative functions, maintaining duty roster, performing postal functions, supervising barrack inspections and assignments, and performing personnel matters. The Board notes that an internet search showed that there were two accidents in one of Ft. Beale's the intercontinental ballistic missile facilities in 1962. To the extent that the Veteran may have been stationed at Ft. Beale during the time of the accidents, was assigned to the munitions maintenance squadron, and served in a supervisory capacity, the Board finds that additional research is needed to determine the nature and extent of these accidents and whether the Veteran could have been exposed to ionizing radiation in connection with these events. With respect to the appellant's accrued benefits claim, while entitlement to accrued benefits must be determined based on evidence that was physically present or constructively present (such as VA treatment records) in the Veteran's claims folder when he died, the Board finds that a decision on the issue of service connection for leukemia for accrued benefits purposes should be deferred pending further development and adjudication of the issue of entitlement to service connection for the cause of the Veteran's death. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should contact the Defense Threat Reduction Agency (DTRA) and/or any other appropriate agency, and attempt to obtain evidence pertaining to the 1962 accidents at Ft. Beale's intercontinental ballistic missile facilities, to include whether there was any leak of ionizing radiation, the amounts of any leak, and whether the Veteran was present. All efforts to obtain such records should be documented in the claims folder. 2. If it is deemed to be necessary based on the state of the record, additional steps should be taken to obtain further information referable to a dose estimate based to extent of any exposure experienced by the Veteran in the reported incident . 3. After completing all indicated development, the RO should readjudicate the issues on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the appellant should be provided 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 appellant has the right to submit additional evidence and argument on the 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 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 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).