Citation Nr: 1326469	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  11-22 512	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for acute myeloid leukemia, including as secondary to exposure to ionizing radiation in service.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1978 to October 1982.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

These claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC.


REMAND

The Veteran contends his leukemia was caused by exposure to radiation from 
X-rays taken in service.  His service treatment records (STRs) show he had X-rays of his shoulder on multiple occasions.  The October 2010 and June 2011 VA compensation examiners acknowledged that ionizing radiation had been identified as a risk factor for the formation of myeloid leukemia.  There also is other evidence in the file that X-rays have been linked to ionizing radiation.  So the Board finds that additional development is needed to determine the size and nature of the Veteran's ionizing radiation dosage in service.

The claim of entitlement to a TDIU is "inextricable intertwined" with the claim of entitlement to service connection for the myeloid leukemia, particularly since the Veteran alleges he is unemployable because of this condition.  See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims are inextricably intertwined when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other).  So a decision on this derivative TDIU claim must be temporarily deferred pending completion of the additional development of the underlying claim for myeloid leukemia.


Accordingly, these claims are REMANDED for the following additional development and consideration:

1.  Request from the National Personnel Records Center (NPRC) in St. Louis, Missouri, or other appropriate source, the appellant's entire Official Military Personnel File (OMPF), including basic and extended service personnel records, administrative remarks, evaluations, orders and records of occupational exposure to ionizing radiation (DD Form 1141).  Efforts to obtain the foregoing records must continue until it is determined they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought and this should be documented for the record.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2012).

2.  Forward the Veteran's personnel records and other pertinent documents, including his STRs showing X-rays performed in service, to the VA Under Secretary for Health for a dose estimate in accordance with 38 C.F.R. § 3.311(a)(2)(iii) (2012).

3.  If it is determined the Veteran was exposed to ionizing radiation, forward the Veteran's file to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c) (2012).


4.  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 his satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claims.  

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



_________________________________________________
KEITH W. ALLEN
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).