Citation Nr: 1324110 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-01 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for non-Hodgkin's lymphoma. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1978, and from November 1981 to August 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). Subsequently, jurisdiction of this matter was transferred to the RO in Detroit, Michigan. In February 2008, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of the hearing has been associated with the claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required on his part. REMAND Unfortunately, a remand is required for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure 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. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Board again concludes that further development is necessary in this case because its directives in its July 2011 remand were not complied with. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the claimant as a matter of law the right to compliance with remand directives). The Veteran alleges that he has non-Hodgkin's lymphoma as a result of a variety of environmental exposures at Naval Weapons Station (NWS) Earle, in Colts Neck, New Jersey, during his first period of active duty, including exposure to ionizing radiation. The Veteran reported that he served as a guard at the NWS. At his DRO hearing the Veteran's representative noted that information in the claims file also infers that the Veteran was exposed to contaminants, such as chromium, at the NWS Earle site. Information in the claims file from the U.S. Environmental Protection Agency (EPA) indicates that the NWS Earle site is a Navy munitions storage station and a Superfund clean-up site. The Veteran testified to being told of a radiation risk at the NWS when assigned to the duty station. He and his comrades did not wear dose meter badges, he said, but had security clearances. He testified that nuclear weapons were kept at the NWS and that they were periodically moved with his Marine unit providing a security force. He alleged that a radiation leak occurred during one such move in the summer of 1977 when he was assigned to guard the weapon only about 90 feet away. He contended that he was exposed to ionizing radiation at that time when men in wet suits or some type of special clothing worked on the weapon for about 45 minutes before the move was resumed. The Veteran also testified that he lived and worked at NWS Earle at the time, that he worked in shoe sales and managed a shoe store after his military service, and that he had not been employed post-service in an occupation where he was exposed to chemicals or other contaminants. The RO attempted to confirm ionizing radiation exposure through a request to the Navy Environmental Health Center Detachment, Naval Dosimetry Center. The Center responded in August 2007 that it had no reports of occupational exposure to ionizing radiation under the Veteran's name, service number and Social Security number. The Center recommended follow up with the National Personnel Records Center (NPRC). The Board noted in its remand of July 2011 that the Veteran's unit of assignment was sufficiently limited and that this should help to discover whether any radiation exposure could be confirmed. The Board directed that the U.S. Army and Joint Services Records Research Center (JSRRC), or any other appropriate agency, should be contacted and requested to search their records to attempt verification of a radiation leak in the summer of 1977 at NWS Earle. In an effort to comply with the Board's remand of July 2011, in September 2012 the RO informed the NPRC that the Board had requested that the JSRRC research the records of the Marine Barracks at NWS Earle, Colts Neck for any information or evidence relating to a radiation leak during the movement of nuclear weapons during the period from May 1977 to July 1977 and from July 1977 to August 1977. Several days later the NPRC responded that the RO use the DPRIS [Defense Personnel Records Information System] website to request information from the JSRRC. Instead, in September 2012 the RO again corresponded with the Navy Environmental Health Center Detachment, Navy Dosimetry Center, and specifically requested research of the records of the Marine Barracks at NWS Earle in an effort to obtain information or evidence relating to a radiation leak during the movement of nuclear weapons during the summer of 1977. Personal information regarding the Veteran was also provided. In reply, in November 2012, the Navy Environmental Health Center Detachment, Navy Dosimetry Center, responded that it found no information pertaining to the Veteran. This correspondence essentially repeated the August 2007 correspondence referred to above and provided no information, as requested by the Board, on whether there had been a radiation leak at the NWS Earle site during the summer of 1977. Nevertheless, in December 2012, the RO drafted a formal finding on the lack of information required to verify radiation exposure and associated that memorandum with the claims file. No further efforts were made to determine whether there had been a radiation leak at NWS Earle during the summer of 1977. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the claimant as a matter of law the right to compliance with remand directives). The Board notes that if there was a radiation leak at that time, then VA would have to assume, based upon his credible testimony, that the Veteran was exposed to radiation during his time in service even though he was not wearing a dosage meter. Therefore, the Board must again remand this matter so that the JSRRC, the Department of the Navy, the U.S. EPA, or some other appropriate agency can determine for VA whether there was a radiation leak at NWS Earle during the summer of 1977 when the Veteran was assigned to that site so that his service connection claim can be properly adjudicated. Under the special development procedures found at 38 C.F.R. § 3.311(a) for claims based on exposure to ionizing radiation, for claims other than those based upon participation in atmospheric nuclear testing or participation in the American occupation of Japan prior to July 1, 1946, a request should be made for any available records concerning the veteran's exposure to radiation. The Board has attempted this development of the claim in its prior remand of July 2011 and in this remand as it has found the Veteran's testimony credible. If on remand it is determined that a radiation leak occurred at NWS Earle during the summer of 1977, then this information, along with other relevant information in the file, including the transcript of the DRO hearing, should be forwarded to the Under Secretary for Health, who will prepare a dose estimate. 38 C.F.R. § 3.311(a)(2)(iii). Additionally, under 38 C.F.R. § 3.311(b), when a veteran is shown to have been exposed to ionizing radiation, and the veteran subsequently developed a radiogenic disease, and such disease first became manifest five years or more after exposure to radiation, the claim must be referred to the Under Secretary for Benefits for further consideration. The Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1). After referring to the factors listed under 38 C.F.R. § 3.311(e), the Under Secretary for Benefits must determine the likelihood that the veteran's exposure to radiation in service resulted in his radiogenic disease. 38 C.F.R. § 3.311(c). Accordingly, the case is REMANDED for the following action: 1. Contact the JSRRC to research the records of the Marine Barracks at Naval Weapons Station (NWS) Earle, Colts Neck, New Jersey, during the period from May through June 1977 or July through August 1977 for any information relating to a radiation leak during the summer of 1977. If a request cannot be directed to the JSRRC or it cannot provide an answer, then the RO should contact the service department, another appropriate Pentagon office, or any other appropriate agency, such as the U.S. Environmental Protection Agency or the U.S. Department of Energy, and ask such agency to determine, if possible, whether there was a leak of radiation during the movement of nuclear weapons at NWS Earle during the period from May through June 1977 or July through August 1977. A negative response should be requested if no information or evidence is available. 2. After the development in paragraph #1 is completed, and it is determined that the Veteran was probably exposed to leaking radiation in the summer of 1977 as part of his military duties, then forward all such records to the Under Secretary for Health and ask that a dose estimate be prepared, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). 3. After the development in paragraph #1 and paragraph #2 has been completed, refer the matter to the Under Secretary for Benefits for the determination of whether the Veteran's non-Hodgkin's lymphoma is related to in-service ionizing radiation exposure. The Under Secretary for Benefits must also determine whether an expert opinion from the Under Secretary for Health as contemplated in 38 C.F.R. § 3.311(c) or referral to an outside consultant for a medical opinion as contemplated by 38 C.F.R. § 3.311(d) is deemed appropriate in this case to ascertain whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not (50 percent or greater probability) that the Veteran's non-Hodgkin's lymphoma resulted from exposure to radiation in service. An additional opinion as to whether the Veteran's non-Hodgkin's lymphoma was due to exposure to chemicals, such as chromium, would also be helpful to resolution of this claim. 4. After the completion of all requested and necessary development, the RO should readjudicate the claim on appeal. If the benefit sought is not granted, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is 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). _________________________________________________ F. JUDGE FLOWERS 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).