Citation Nr: 1319768 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 12-08 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for bladder cancer as due to ionizing radiation exposure. 2. Entitlement to service connection for prostate cancer as due to ionizing radiation exposure. 3. Entitlement to service connection for a skin condition, including skin cancer, as due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from February 1944 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) regional office (RO). The Veteran disagreed with the RO denials of his claims and he filed a timely substantive appeal. In his March 2012 substantive appeal, the Veteran requested a Travel Board hearing before a Veterans Law Judge at the Board. In April 2012 the Veteran withdrew his request for a Travel Board hearing. 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 claims for service connection for bladder, prostate, and skin cancer, including a skin condition, due to ionizing radiation are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Veteran, who served on active duty from February 1944 to April 1946, alleges that his bladder, prostate, and skin cancer, including a skin condition, are the result of exposure to ionizing radiation that he sustained during his service military duties as an X-ray technician during World War II. The Veteran's service personnel records confirm that his occupational assignment during service was as an X-ray technician. Those records report that the Veteran had 4 months in the capacity as a student (X-ray), and 18 months as an X-ray technician. Medical records in the claims file confirm that the Veteran received treatment for bladder cancer in 1982, and most recently for prostate cancer in 2006. The Veteran also claims a distant history of treatment for skin cancer dating to the 1940's and 1950's, but more recent treatment for a skin condition. It must be pointed out that service connection may be established for diseases claimed to be attributable to radiation exposure in service under (1) the presumptive service connection provisions of 38 C.F.R. § 3.309 involving "radiation-exposed veterans," (2) the development procedures of 38 C.F.R. § 3.311 involving "radiogenic diseases," or (3) by establishing direct service connection. See 38 U.S.C.A. § 1112(c) (West 2002); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran has claimed exposure to ionizing radiation based on his service occupation as an X-ray technician, so while cancer of the bladder is part of the urinary tract cancers listed under 38 C.F.R. § 3.309, the Veteran was not involved in a listed radiation-risk activity, so those presumptive service connection provisions are not applicable to his claims. However, under the provisions of 38 C.F.R. § 3.311, a "radiogenic disease" means a disease that may be induced by ionizing radiation, and includes most forms of cancer such as bladder, prostate, and skin cancers. Under 38 C.F.R. § 3.311 there are certain development procedures, including claims based on exposure other than atmospheric and Hiroshima and Nagasaki ionizing radiation exposure, such as here, the Veteran's claimed radiation exposure as an X-ray technician during service. Pursuant to 38 C.F.R. § 3.311, when a claimant contends that a radiogenic disease, which first became manifest after service though not to a compensable degree within any other applicable presumptive period, is the result of exposure to ionizing radiation in service, an assessment is made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311(a). Except as otherwise provided, the radiogenic disease must become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these threshold requirements are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). In order to do so, the RO must request dose information as provided by 38 C.F.R. § 3.311(a)(2). 38 C.F.R. § 3.311(a)(2)(iii) requires that, in claims not based upon participation in atmospheric nuclear testing or Hiroshima and Nagasaki occupation, dose data normally include, but may not be limited to, the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), service treatment records and other records which may contain information pertaining to radiation exposure in service. All such records must then be forwarded to the Under Secretary for Health, who will be responsible for the preparation of a dose estimate. 38 C.F.R. § 3.311(a)(2)(iii). Finally, if exposure to ionizing radiation is identified, the Veteran's claim must then be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). It appears that dose estimate procedures pursuant to 38 C.F.R. § 3.311 have not been followed. In April 2011, the RO contacted the National Personnel Records Center pertaining to records of the Veteran's exposure to radiation, and any radiation risk activities. NPRC responded that the Veteran's records were fire related and could not be reconstructed. The RO notified the Veteran of this result in May 2011. Then in July 2011, the RO contacted the U.S. Army Ionizing Radiation Dosimetry Center, requesting a DD 1141, Record of Exposure to Ionizing Radiation or equivalent record of exposure. There is no evidence that the Veteran was a participant in a recognized radiation risk activity, and in August 2011 the U.S. Army responded that they were unable to locate any records of the Veteran. The RO then proceeded with adjudication of the Veteran's service connection claims. As mentioned, medical records show that the Veteran has radiogenic diseases within the meaning of 38 C.F.R. § 3.311(b)(2), manifesting, at least concerning his bladder and prostate cancers, more than five years after alleged exposure. These facts are sufficient to trigger the obligation to obtain a radiation dose estimate under 38 C.F.R. § 3.311(a)(1). The RO requested DD Form 1141 and any other records related to radiation exposure, and was informed no such records exist. However, the claims file was not referred to the Under Secretary for health for preparation of a dose estimate as required by 38 C.F.R. § 3.311(a)(2)(iii). As such, the Board must remand the instant case. On remand, the Veteran's claims file should be forwarded to the Under Secretary for Health for a radiation dose estimate and, if radiation exposure is identified, to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). The Veteran asserts that he has had skin cancer in the distant past, as well as a current skin condition, and although there is no medical evidence of his claimed skin cancer, and a skin condition is not a radiogenic disease under 38 C.F.R. § 3.311(c) that skin cancer/condition claim is impacted by the outcome of his claims for entitlement to service connection for bladder and prostate cancer due to ionizing radiation, and therefore, they are inextricably intertwined. The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). 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. Forward the Veteran's personnel records, service and post-service medical records, and other pertinent documents to the VA Under Secretary for Health for a dose estimate based on his service as an x-ray technician from February 1944 to April 1946 in accordance with 38 C.F.R. § 3.311(a)(2)(iii) (2012). 2. Following receipt of such dose estimate, forward the Veteran's claim to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c) (2012). 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ S. L. Kennedy 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).