Citation Nr: 1317926 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 10-04 240A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to May 1965 and from October 1965 to October 1981. He died in September 2007. The appellant is his surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for the cause of the Veteran's death. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. 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 appellant essentially contends that the cholangiocarcinoma which caused the Veteran's death was service connected. She contends that the Veteran's exposures during service, to herbicides such as Agent Orange in Vietnam, and to ionizing radiation on Eniwetok Atoll and in duties working with nuclear weapons, caused the development of his cholangiocarcinoma. Because the Veteran served in Vietnam in 1966, 1967, and 1969, VA presumes that he was exposed during service to an herbicide agent such as Agent Orange. Additional action is needed, however, with regard to the claim that the Veteran's cholangiocarcinoma was caused by his exposure to ionizing radiation during service. The Veteran reported radiation exposure during service from in the Eniwetok Atoll in the Marshall Islands and from service duties in the storage and maintenance of nuclear weapons. The record reflects that he was stationed at Eniwetok from June to November 1964. The Board takes judicial notice that the United States government fired nuclear weapons in testing operations at Eniwetok in the late 1940s through the late 1950s. In addition, the record shows that the Veteran's duties in the storage and maintenance of nuclear weapons took place from 1976 to 1979 at Warren Air Force Base in Wyoming and in 1979 and 1980 at Incirlik Air Base in Turkey. The Veteran had cholangiocarcinoma, which is a radiogenic disease for VA claims purposes. See 38 C.F.R. § 3.311(b). His cholangiocarcinoma became manifest more than five years after his exposure in service to ionizing radiation. When it is determined that a veteran was exposed to ionizing radiation during service, and the veteran subsequently developed a radiogenic disease within a specified time period (for this Veteran's type of cancer five or more years after exposure), VA must obtain a determination or estimate of the dose of radiation to which the veteran was exposed during service, and must have the VA Under Secretary for Benefits review the case and determine the likelihood that the veteran's disease resulted from exposure to radiation in service. See 38 C.F.R. § 3.311(b), (c). In this case, VA obtained an estimate of the dose of radiation to which the Veteran was exposed during service. Therefore, even though the Board has obtained a VHA medical opinion concerning the relationship between cholangiocarcinoma and exposure to ionizing radiation, procedural due process requirements mandate that the case must be forwarded to the Under Secretary for Benefits for the required review and determination. Thus, while the Board regrets the delay caused by this remand directive, it does so to afford the appellant due process under law. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's file (both the paper file and access to relevant records in the Virtual VA file) to the VA Under Secretary for Benefits. United States Air Force and VA officials have determined that the Veteran's exposure to ionizing radiation during service was at a rate of less than 5,000 millirem per year during his six months on Eniwetok in 1964, and 430 millirem per year during his 1976 to 1980 duties in the storage and maintenance of nuclear munitions at Air Bases in Wyoming and Turkey. Ask the Under Secretary, or his or her designee, to consider under 38 C.F.R. § 3.311(c) whether it is at least as likely as not that the Veteran's cholangiocarcinoma resulted from his exposure to radiation during service. 2. Then, readjudicate the appellant's claim for service connection for the cholangiocarcinoma which caused the Veteran's death. If the claim remains denied, provide the appellant with a Supplemental Statement of the Case. Provide the appellant and her representative appropriate time to submit additional argument, and then return the claim to the Board for further review. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ MATTHEW D. TENNER Acting 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).