Citation Nr: 1313323 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 12-17 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma, to include as being secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from April 1959 to April 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran appeared for a personal hearing before the undersigned in March 2011. A transcript of that hearing is associated with the claims file. 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 appellant if further action is required. REMAND The Board determines that additional development is required in order for there to be compliance with VA's duty to assist. 38 C.F.R. § 3.159. Specifically, the Veteran asserts that his diagnosed non-Hodgkin's lymphoma (which has been diagnosed since 20062 and is not in dispute) is related to exposure to depleted uranium during specialized in Atomic Projectile Assembly School (a two week program) and while he was serving in Bramburg, Germany, with the 2nd Battalion, 80th Artillery. He states that he routinely handled munitions that contained, or comprised of, depleted uranium. In a radiation dose assessment questionnaire, dated in November 2010, he stated that he handled U2-5 and U2-4, atomic rounds for the "Big Bertha" cannon, five days a week for 15 months, six hours a day, with B Company, 80th Artillery, in Bamberg, Germany, and that his military occupation specialty was "140 SW." In general, service connection is warranted on a presumptive basis for certain disorders when the evidence establishes that a veteran participated in a "radiation risk activity," which includes on-site participation in, or within six months following, an atmospheric nuclear detonation. 38 C.F.R. § 3.309(d)(3) (2012). The evidence does not establish that the Veteran has ever participated in a "radiation risk activity" contemplated by this section, nor has the Veteran so asserted. The U.S. Army Dosimetry Center reported in December 2010 that it had researched the files for records of exposure to ionizing radiation and was unable to locate any records pertaining to the Veteran. However, service connection may also be established if the evidence shows (1) that a veteran was exposed to ionizing radiation, and (2) the veteran has a "radiogenic disease" that is attributable to such exposure. See 38 C.F.R. § 3.311(b). Non-Hodgkin's lymphoma is a radiogenic disease as is contemplated by 38 C.F.R. § 3.311(b)(2) (2012). Although 38 C.F.R. §§ 3.309 and 3.311 discuss potential causes of ionizing radiation exposure, neither of these sections discuss the potential impact of ionizing radiation exposure due to the handling of depleted uranium. The Board will take notice of the fact that depleted uranium, as the remains of a process that extracts the more reactive isotopes of uranium for use in nuclear weapons and reactors, may serve as a radioactive source. The Board also recognizes that depleted uranium has historically been used in a number of military and non-military applications for decades due to its high density and other unique physical properties. Some specific applications have included ammunition rounds, storage facilities, ballast, and tank armor. While depleted uranium handling was not specifically contemplated by VA regulations, 38 C.F.R. § 3.311 does not require affirmative evidence of ionizing radiation exposure before obtaining a dose estimate from the Under Secretary for Benefits. Rather a dose assessment is required whenever a radiogenic disease has been identified (as it is here) and "it is contended that the disease is a result of exposure to ionizing radiation in service." 38 C.F.R. § 3.311(a)(1). This is a low threshold; and, moreover, the Veteran is not required to produce evidence of his claimed exposure if such exposure is consistent with the nature of his service. 38 C.F.R. § 3.311(a)(4)(ii). Here, given the fact that the Veteran had specialized training in Atomic Projectile Assembly School and gained certification in the same, and that he also served ammunition bearer, which involves the assembly and preparations of munitions, there is insufficient to rebut the Veteran's assertions that he handled depleted uranium in some capacity. The Board is also unable to conclude on its own that the handling of depleted uranium did not result in some level of ionizing radiation exposure. To the contrary, in a statement dated in March 2012, J.E.C., M.D., observed that recent studies indicate that depleted uranium is less radioactive than natural uranium, but it still retains all of the chemical toxicity associated with the original element, and that evidence continues to accumulate that depleted uranium poses a radiological hazard. He states that people exposed to radiation generally can suffer from lymphoma, that the Veteran was exposed to radiation from mock kits to assemble nuclear weapons, and that since the exposure to radiation can cause lymphoma cancer even up to 50 years later after exposure, it is more likely than not that the Veteran's lymphoma cancer was caused by exposure to radiation on active duty. A January 2012 statement from Dr. C.B. similarly indicated that, if it was possible to prove radiation exposure, even to the U-235, there could be some reasonable conclusion that the development of a lymphoma from this low dose exposure many years ago could be connected. Indeed, VA has released at least two occasions published studies specifically discussing the potential impact of depleted uranium exposure. See Determinations Concerning Illnesses Discussed in the Institute of Medicine Report on Gulf War and Health: Updated Literature Review of Depleted Uranium, 75 Fed. Reg. 10,867 (March 9, 2010); Illnesses Not Associated With Service in the Gulf During the Gulf War, 66 Fed. Reg. 35,702 (July 6, 2001). 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. Request from the Veteran any specific information regarding his handling of depleted uranium from 1959-1961. He is asked to specifically discuss what depleted uranium objects he handled, how these objects were used and whether his handling of depleted uranium included any unusual circumstances such as embedded or ingested fragments. The Veteran should be afforded an appropriate time to respond. 2. When the above development is complete, forward the Veteran's information to the Under Secretary for Benefits for review under 38 C.F.R. § 3.311(c). For purposes of analysis, the Veteran should be presumed to have handled depleted uranium, in the normal fashion, for a two week period of training in Atomic Projectile Assembly School in 1959 and as an ammunition bearer from January 1961 to April 1961. The RO should provide all pertinent evidence, to include the specific factors for consideration enumerated in 38 C.F.R. § 3.311(e). Any additional development related to service treatment or personnel records is not necessary unless deemed so by the Under Secretary for Benefits. 3. After completion of the foregoing, readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant 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). _________________________________________________ MICHAEL A. HERMAN 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).