Citation Nr: 1313901 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 08-34 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for residuals of removal of the stomach and gallbladder due to a gastrointestinal tumor, claimed as due to exposure to ionizing radiation. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from July 1950 to February 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board notes that, in his November 2008 and February 2010 substantive appeals, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. In July 2012, he was advised that his requested hearing was scheduled for September 2012. Thereafter, later in July 2012, the Veteran indicated that he would be out of state at the time of the scheduled hearing and requested that such be rescheduled. Thereafter, in January 2013, he was advised that his hearing had been scheduled for March 2013; however, later in January 2013, the Veteran indicated that he would be unable to attend such hearing and requested that his case be forwarded to the Board for a decision in his appeal. Therefore, the Board finds that the Veteran has withdrawn his hearing request. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated through June 2012 which were considered in the most recent June 2012 supplemental statement of the case. The remaining records are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Service personnel and treatment records show that the Veteran served as a seaman and small boat coxswain aboard USS Cabildo (LSD-16) during Operation Greenhouse, an atmospheric nuclear weapons test in the Marshall Islands from April 1951 to June 1951. The Veteran also contended that he participated in the decontamination of the ship in October 1951, but service personnel records show that he was absent without official leave from September 1951 to November 1951. Private medical records show that the Veteran underwent an esophagogastrectomy for a persistent, non-healing, benign ulcer in November 1983. From April 1984 through July 1984, a gastroenteric anastomosis was converted to a gastric jejunostomy and later a total gastrectomy was performed to remove a necrotic stomach. In September 1987, the Veteran underwent a cholecystectomy for enlarged gall stones. The Veteran contends that a benign gastric tumor and gall stones were caused by his exposure to ionizing radiation in service and, therefore service connection for residuals of removal of the stomach and gallbladder is warranted. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. Ramey v. Brown, 9 Vet. App. 40, 44 (1996), affirmed at 120 F.3d. 1239 (Fed. Cir. 1997). A radiation-exposed Veteran is one who participated in a radiation-risk activity. A radiation-risk activity includes the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed Veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Although cancers of the stomach and esophagus are among those diseases for which the presumption is available, benign ulcers or tumors are not among those diseases. Therefore, the presumption is not available in this case. 38 C.F.R. § 3.309 (d)(2). Second, radiogenic diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), manifested within a prescribed time period after service in an ionizing radiation-exposed Veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. 38 C.F.R. § 3.311(b)(2). Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). An assessment of the nature and size of the radiation dose is required. 38 C.F.R. § 3.311(a). Third, direct service connection can be established by showing that the claimed condition was incurred or aggravated by exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this case, there is credible medical evidence that the Veteran was diagnosed and treated for a non-healing benign esophageal ulcer, complications requiring a total gastrectomy, and a cholecystectomy. Additionally, as will be discussed more thoroughly below, VA has acknowledged the Veteran's in-service exposure to radiation. The Veteran also submitted one complete study ("Incidence of Benign Gastrointestinal Tumors among Atomic Bomb Survivors", two abstracts ("Profiles of non-cancer diseases in atomic bomb survivors" and "Studies of mortality of atomic bomb survivors"), and one excerpt of a study published in medical journals ("Report on the Feasibility of a Study of the Health Consequences to the American Population from Nuclear Weapons Tests Conducted by the United States and Other Nations") that address the incurrence of benign gastrointestinal tumors and suggest a possible relationship to ionizing radiation exposure. Although several VA physicians have reviewed the evidence in the file and provided opinions regarding a relationship between esophageal ulcer and gall stones and ionizing radiation exposure, the Board concludes that the evidence of record meets the criteria for additional development of his claim as required by 38 C.F.R. § 3.311. Specifically, while benign gastrointestinal tumors are not included as a radiogenic disease at 38 C.F.R. 3.311(b)(2)(i), such provisions subsequently indicates that, if a claim is based on a disease other than one of those listed in paragraph (b)(2), VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. As indicated previously, the Veteran has submitted numerous scientific journal articles addressing a possible relationship between benign gastrointestinal tumors and exposure to ionizing radiation. Therefore, additional development is necessary prior to adjudication of the claim. In this regard, all claims based upon participation in atmospheric nuclear testing, dose data will in all cases be requested from the appropriate office of the Department of Defense. The claims file contains several inconsistent dose estimates. Service records do not contain a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). The service records do show that the Veteran was assigned a dose of 1.1 rem during the months of April 1951 and May 1951 not based on individual measured exposure. An excerpt of a 1951 Defense Nuclear Agency report shows that dosimetry film badges were distributed to representative members of Navy crews and that the assigned exposure for unmonitored crew members on USS Cabildo was 1.1 rem with a range for boat crews of 0.7 to 2.1 rem. A February 2009 letter from the Department of Energy (DOE), National Nuclear Energy Administration, to the Veteran reported that his exposure during 1951 testing in the Pacific was 0.422 rem. DOE noted that it did not hold individual exposure records for the Veteran and that the estimate was obtained from the Defense Threat Reduction Agency (DTRA). In a July 2009 statement, the Veteran described his duties and activities in detail. He reported that film badges were issued only after several tests and that many were defective. He contended that his dose was far greater than the reconstructed dose. To resolve inconsistencies, to ensure consideration of the Veteran's reported activity, and to comply with 38 C.F.R. § 3.311(a)(2), a request for a dose estimate to the appropriate office of the Department of Defense is necessary. When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest within the prescribed time period, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). Here, the Veteran has submitted competent scientific evidence suggesting that the claimed disorder is a radiogenic disease. When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. § 3.311(d). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is at least as likely as not that the disease resulted from in-service radiation exposure or whether there is no reasonable possibility that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Therefore, the Board concludes that, after a dose estimate has been obtained from the Department of the Defense, the requirements have been met for the claim to be sent to the Undersecretary for Benefits for further consideration. Finally, the RO provided a notice in January 2006 that did not advise the Veteran of all criteria to substantiate a claim for service connection including an explanation of the criteria for radiogenic diseases and for assignment of a rating and effective date should service connection be awarded. A compliant notice is necessary. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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. Provide the Veteran a notice informing him of all criteria to substantiate a claim for service connection including an explanation of the criteria for radiogenic diseases and for assignment of a rating and effective date. 2. Request a dose estimate from the appropriate office of the Department of Defense for the Veteran's external and internal exposure received during Operation Greenhouse aboard USS Cabildo in 1951. Provide the office with copies of the service record dose, the February 2009 DOE/DTRA letter, and the Veteran's July 2009 statement of his duties and activities during the Operation. 3. Thereafter, refer the claim to the Undersecretary for Benefits for a determination whether it is at least as likely as not that the Veteran's residuals of removal of the stomach and gallbladder due to a gastrointestinal tumor, to include a non-healing benign esophageal ulcer, stomach necrosis, and gall stones, resulted from his in-service radiation exposure. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ A. JAEGER 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).