Citation Nr: 1313827 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 05-30 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for leucopenia/leukemia, claimed as secondary to radiation/chemical exposure. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1978. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2006, the Veteran testified at a hearing at the RO before one of the undersigned, a Veterans Law Judge at the Board of Veterans' Appeals. A transcript of the proceeding is of record. At that time the Veteran was represented by a Veterans' Service Organization (VSO). In December 2006, the Board issued a decision denying the claim for leucopenia/leukemia. The Board also denied a claim of service connection for tinnitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2008, the parties to the appeal filed a Joint Motion for Partial Remand. (Therein, the parties abandoned any appeal with respect to the denial of service connection for tinnitus.) That same month, the Court granted the motion and vacated and remanded the matter to the Board. In July 2009, the Board remanded the matter in order to comply with the terms of the Joint Motion for Partial Remand. In March 2010, after finding a lack of substantial compliance with its remand directive, the Board again remanded the matter to the RO. In October 2010, the RO issued a supplemental of the case in which it continued the denial of the claim. In October 2010, the appellant, who was then represented by a private attorney, requested another hearing before the Board. In May 2011, the Board granted his request for a hearing. A videoconference hearing was conducted before a Veterans Law Judge and an Acting Veterans Law Judge in August 2011. In September 2011, the Board issued a decision denying the Veteran's service connection claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans' Claims (Court). In a May 2012 Order, the Court remanded the Board's decision pursuant to the terms of a Joint Motion for Remand (JMR) submitted by the parties. Shortly after the remand by the Court, the Veteran's private attorney submitted a December 2012 statement noting that he had withdrawn his representation of the Veteran. Thereafter, the Board informed the Veteran that it had not received an appointment subsequent to that submitted by the attorney who had withdrawn his representation. The Veteran was informed by letter in December 2012 that he could either represent himself in this matter, appoint an accredited VSO, or appoint an accredited attorney or representative to represent him in this matter. He was further notified that if VA received no respond from either him or a newly appointed representative within 30 days of the date of the letter, VA would assume that he wished to represent himself in this matter. No response has been received; accordingly, the Board will resume review of his appeal. Since the law requires that the Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal, this matter will be decided by a three member panel of Veterans Law Judges, which will include the Veterans Law Judge who presided over the hearing in June 2006 and the Veterans Law Judge and Acting Veterans Law Judge who participated in the hearing in August 2011. 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). 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 Veteran contends that he was exposed to radiation or chemicals during active duty service as a result of handling weapons. Specifically, he describes military job responsibilities while serving at Fort Sill that he alleges resulted in exposure to radiation and/or chemicals. He stated that while working at Fort Sill in 1975, he inspected a Lance missile warhead that was leaking. See June 6, 2006 Transcript at 4. He described the fluid as clear and like antifreeze. See August 11, 2011 Transcript at 15. He claimed that the area was evacuated but he never learned what was in the fluid. In the 2012 JMR, parties noted that while the record contained inquiries regarding the Veteran's alleged allegations of radiation exposure while stationed at White Sands, the record did not indicate that any requests were made pertaining to the 1975 Fort Sill incident reported by the Veteran. The parties agreed that the Board did not adequately address this matter. As such, the Board finds additional development is necessary to determine if the incident happened and, if so, what the Veteran was exposed to at that time. On remand, the RO or AMC should take appropriate steps to verify the Veteran's claimed exposure to radiation and/or chemicals associated with this alleged incident. In addition, the Court noted that the Board failed to address missing records identified by the Veteran. In his April 2004 claim, the Veteran asserted he was treated for leucopenia at the VAMC in Muskogee, Oklahoma from 1992 to the present. The Board notes that in July 2004 the RO requested records from the Muskogee VAMC dated from January 1992 to May 2004. The Muskogee VAMC responded by supplying records dated from July 1999 to May 2004. Pursuant to the JMR, the Board finds the RO should confirm with the Muskogee VAMC that additional treatment records dated prior to July 1999 are unavailable. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate service department and/or record storage facility, in an attempt to verify the Veteran's alleged exposure to toxic chemical agents and/or radiation while serving at Fort Sill in 1975. Any information secured must be made a part of the Veteran's claims folder. Should such information prove unavailable, the RO/AMC should notify the Veteran and briefly explain the efforts that the RO made to attempt to verify the Veteran's claim. The Veteran must then be given an opportunity to respond. 2. Request any pertinent VA medical records that have not already been associated with the claims file, to specifically include those prior to July 1999 from the Muskogee VAMC. Associate any records received, including negative responses, with the claims file. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 3. Then, readjudicate the claim. In particular, review all the evidence that was submitted since the most recent supplemental statement of the case (SSOC) was issued. If the benefit sought on appeal remains denied, he should be provided a SSOC, which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. 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). ________________________ _______________________ DAVID L. WIGHT THOMAS H. O'SHAY Veterans Law Judge Acting Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________ J. A. MARKEY 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).