Citation Nr: 1326711 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 13-09 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of renal cancer, including status post right nephrectomy, due to ionizing radiation. 2. Entitlement to service connection for residual of myofibroma tumor of the right inner cheek, due to ionizing radiation. 3. Entitlement to service connection for a liver tumor, including a complex hepatic cyst, due to ionizing radiation. 4. Entitlement to service connection for disability of the lymph nodes of the chest, due to ionizing radiation. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from August 1983 to July 1986. His DD 214 reflects that his military occupational specialty was a cannon crewman. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a May 2013 videoconference and a transcript thereof is in the claim file. At the videoconference, it was agreed that the case would be held open to allow the Veteran the opportunity to submit additional evidence. That evidence has now been received. 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, DC. VA will notify the appellant if further action is required. REMAND The claims on appeal require further preadjudication development. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board regrets the additional delay that will result due to this remand but additional development is necessary to ensure a complete record and to provide every possible consideration. At the May 2013 videoconference the service representative stated that additional evidence would be submitted, together with a waiver of initial RO consideration of that evidence. Page 2 of the transcript. It was agreed to hold the case open for 30 days for the submission of additional evidence. Page 14. Subsequently, additional evidence was received but without a waiver of initial RO consideration thereof. Thus a remand is required for the preparation of a supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304(c) (2012). The RO had denied the claim on the apparent basis that the Veteran had no inservice ionizing radiation exposure. The Veteran's service treatment records (STRs) are negative for any cancer but do note that he had a tooth extracted in October 1985. The Veteran's service personnel records show that he served in Europe, including Germany, from January 1984 to June 1985. On file are military certificates which show that the Veteran completed a "WA 220A-4, 8 Inch M753 Atomic Projectile Prefire Assembler Course" in May 1984. He performed as a cannoneer with Alpha Battery, 3rd Battalion, 16th Field Artillery, 8th Infantry Division at Baumhold, Germany from December 1983 to July 1985. His performed from August to September 1985 as a cannoneer of Bravo Battery, 1st Battalion, 11th Field Artillery, 9th Infantry Division. In August 2011 the RO wrote the U.S. Army Dosimetry Center and requested a DD 1141, Record of Exposure to Ionizing Radiation, or equivalent record, of the Veteran's alleged inservice exposure to radiation. In September 2011 the U.S. Army Dosimetry Center replied that after a search no records of the Veteran could be located. A report of a February 2011 Consultation by Dr. J. A., an Associate Professor of Medicine, Division of Hematology and Oncology, Medical Director, Penn State Hershey Medical Group reflects that the Veteran had had renal cell carcinoma. He had worked as a nuclear weapons assembler in the Army and was exposed to depleted uranium from 1983 to 1985. In 2008 he had developed, in part, left-side rib pain. A February 2008 CAT scan revealed a right kidney lesion, a fatty liver and a possible hemangioma. A CAT scan in March 2008 revealed pulmonary nodules and a right renal mass. He had a right nephrectomy in March 2008 for pathologically determined conventional, clear cell carcinoma. Due to a questionable abnormality, the left 10th rib was resected in April 2008 but there was no malignant pathology found. In 2010 he developed a lesion of the inner right cheek, which was excised in March 2010 and the pathology was consistent with a myofibroma. He underwent re-excision in December 2010. Dr. J. A. noted that there were two questions. The first was whether the myofibroma was related to the renal cancer and the second was whether these were both related to prior uranium exposure. After a physical examination and laboratory studies it was stated that the questionable hepatic lesion, which had not been biopsied, was felt to represent a hemangioma versus a complex cystic lesion. The Veteran also had stable, tiny, pulmonary nodules. DNA sequencing was negative for "Von Hippel-Lindau point mutations" but this did not completely rule out the possibility of Von Hippel-Lindau syndrome. His myofibroma was non-malignant spindle cell neoplasm more commonly seen in infants and adolescents, but could be seen in adults, usually in para-oral locations. Whether or not the renal cell carcinoma and/or myofibroma were related to his exposure to depleted uranium in the early to mid 1980s could not be completely established. In an undated statement from Dr. J. A. it was reported that the Veteran had a history of myofibroma and renal cell carcinoma. He had been exposed to depleted uranium during service from January 1984 to 1986. It had been established in medical literature that chronic exposure to low-dose radiation could result in myofibromas, renal cell carcinomas, and other malignancies. The time interval from radiation exposure to development of malignancy was on the order of more than 10 years for most malignancies. The Veteran's myofibroma was diagnosed in 2010 and the renal cell carcinoma in 2008. These time frames were certainly within the realm of possible radiation-induced malignancies. A private CT of the Veteran's chest in February 2011 revealed some shotty nodes and his right kidney was surgically absent. The impressions were right nephrectomy changes, and indeterminate hypodense lesion of the right lobe of the liver. At the May 2013 videoconference the service representative stated that the U.S. Army had been unable to locate the Veteran's "1141" which would have documented his exposure to ionizing radiation. The Veteran testified that he was a crewman of Bravo 13. He had been selected for special weapons training at Ft. Sill, Oklahoma. He had attended special weapons classes there and worked on two types of projectiles, the M422 atomic projectile and the M753 atomic projectile. In working with the M422 projectiles he was exposed to depleted uranium. To make larger or smaller nuclear detonations, uranium rings were either added or subtracted from the projectile. Page 3. In doing so, he had "open handedly handled those depleted uranium rings on a daily basis" during his training. They had been told that in such training he would be exposed to "low-range alpha emitters" which could enter the body via the ears, eyes, nose, mouth, and any open cuts or wounds. They were to use band-aids and ensure that they washed their hands before eating. This had occurred during his training from 1983 to 1986. Page 4. The Veteran testified that he had then been sent to Germany, with the 3rd Battalion, 16th Field Artillery, to Baumholder, West Germany, in the 8th Infantry Division. He had been assigned to the Special Weapons section of Alpha Battery. His work had been in a bunker in the basement of the barracks and in a transport vehicle in the field. He had ate and slept in the vehicle in which the projectiles were kept. Page 4. He and others had had to constantly train by assembling and disassembling the nuclear projectiles. At times they had had to wipe off "radioactive spalling" or radioactive rust off of the nuclear projectiles. Page 5. He had not worn any protective gear. He had certificates which proved that he had had the training for the M422 and M763. Page 6. He had never had to actually fire a cannon containing a nuclear projectile; rather, his exposure came from the constant training of assembling and disassembling the nuclear projectiles. Page 7. The Veteran testified that he had no family history of cancer and did not smoke or drink. Page 8. The Veteran's wife testified that he had been diagnosed with cancer in 2008. A rib had been removed from the left side of his chest because it had been thought that he had cancer at that site. A year or two later, he developed a tumor, myofibroma on his face, at which time a surgeon had asked if the Veteran if he had been exposed to depleted uranium and stated that it was not a coincidence that he had renal cell carcinoma and myofibroma. Page 8. The service representative further stated that the Veteran's renal cell cancer was diagnosed in 2008 and the myofibroma was diagnosed in 2010. Page 10. The Veteran testified that a urinalysis 28 years after his inservice radiation exposure revealed that he still had radiation in his urine. He had worked after service as an electrician and had not been exposure to radiation after service. Page 11. VA electronic medical (CAPRI) records contained in the Virtual VA paperless claims processing system include records from October 2012 to February 2013. An October 2012 notation observed that based on the Veteran's history, he had been told in the past that the types of cancer which he had had were rare and might be related to radiation exposure. He reported that while serving in the military he had been exposed to radiation. A November 2012 MR found a hepatic lesion which was characterized as a complex hepatic cyst and diffuse hepatic steatosis. In December 2012 it was noted that he had had a right nephrectomy for renal cancer, and had "myofibroma" diagnosed and resected in 2010, and that he had nodular lesions on his liver of uncertain significance. It was believed that these cancers might be related to exposure to depleted uranium in the 1980's. The Veteran reported having had very close contact with the uranium during that time on a daily basis. Also in December 2012 Dr. C. M. [author of the subsequent May 2013 letter] stated that he needed "to review literature regarding kidney disease and uranium exposure." In February 2013 it was reported that the underlying kidney disease was of uncertain etiology but most likely, he had diabetic nephropathy; however, given his unusual history other etiologies remain possible, such as "Primary/Secondary FSGS v. MCD (although unlikely)." The CAPRI records in Virtual VA also show that on December 14, 2012, a VA physician was to help to make arrangements for the Veteran to have "Depleted Uranium" testing done at the VA Medical Center in Coatesville. However, the CAPRI records do not contain any follow-up notations as to whether such testing was actually perform and, if so, what the results were. Given the Veteran's testimony that he had a urinalysis 28 years after service which was positive for depleted uranium and that he had not been exposed to ionizing radiation after service, additional efforts should be made to determine whether he was provided depleted uranium testing by VA and, if so, the results thereof. A May 2013 statement from Dr. C. M. of the "University of Pennsylvania/VAMC Philadelphia" reflects that he had managed the Veteran's chronic kidney disease that was thought to be secondary to a combination of diabetic nephropathy in addition to hyperfiltration injury suffered after the Veteran's right sided total nephrectomy for renal cell carcinoma. The Veteran had had a multitude of cancers, renal cell carcinoma, myofibroma, "PLEVA," and had a liver mass, and this was highly unusual for someone his age. It was believed that this was likely related to exposure to depleted uranium during his time in the military. In this regard, 38 C.F.R. § 3.311(a)(2)(iii) provides that in claims in which a radiogenic disease first manifests more than one year after service, a dose information request will be made for any available records concerning the Veteran's radiation exposure. Such records normally include, but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation, DD Form 1141, if maintained, service medical records, and other records which may contain information pertaining to the Veteran's radiation dose during service. Such records will then be forwarded to the Under Secretary for Health, who will prepare a dose estimate. As to exposure, 38 C.F.R. § 3.311(a)(4)(i) provides that if military records do not establish presence at or absence from a site at which exposure to radiation is claimed to have occurred, a veteran's presence at a site will be conceded. The use of the term "site" is apparently a reference to ionizing radiation claims based on atmospheric nuclear testing and presence at or near Hiroshima and Nagasaki, (which is not the case here). On the other hand, 38 C.F.R. § 3.311(a)(4)(ii) provides that a veteran is not required to produce evidence substantiating exposure if information on file and in the records of the Department of Defense is consistent with the claimed exposure. Such is the case here. Further, 38 C.F.R. § 3.311(b)(i), (ii), and (iii) provide that when it is determined that a veteran was exposed to ionizing radiation and develops a radiogenic disease which manifests within the period specified in 38 C.F.R. § 3.311(b)(5), then prior to adjudication the case will be referred to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). Moreover, 38 C.F.R. § 3.311(b)(2)(iv), (vi), (vii), and (xii) provide that, respectively, cancer of the lung, liver, skin, and kidney are radiogenic diseases; and 38 C.F.R. § 3.311(b)(5) provides that they must manifest more than 5 years after service. Here, the September 2012 response from the U.S. Army Dosimetry Center that no records of the Veteran's ionizing radiation exposure could be located does not necessarily establish that the Veteran had no inservice ionizing radiation exposure, in light of the Veteran's testimony as well as military certificates indicating training with respect to nuclear projectiles. However, the case has not been referred to the Under Secretary for Health for preparation of a dose estimate. Thus, the case should be forwarded to the Under Secretary for Health for preparation of a dose estimate and, if it is thereafter determined that the Veteran was exposed to ionizing radiation, the case should be referred to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). 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. The RO/AMC shall provide the Veteran with an opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his claims that have not yet been associated with the claims file. Appropriate steps should be taken to obtain any such identified records, as well as to obtain VA records dated since February 2013. The appropriate steps should be taken to obtain all VA records of testing of the Veteran in or after December 2012 for depleted uranium at the VA facility in Coatesville, or another VA facility, and the results of such testing. When obtained, those records must be associated with the record on appeal. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The RO should also consider the claims under the provisions of 38 C.F.R. § 3.311, to include obtaining a dose estimate from the Under Secretary for Health, and, if otherwise in order, referral of the case to the Under Secretary of Benefits for initial review of the claims under 38 C.F.R. § 3.311(c). 3. Thereafter, the RO should readjudicate the claims. If they are not granted, issue the appellant and his representative a Supplemental Statement of the Case to which they must be given the appropriate period of time to respond before returning the case to the Board for further appellate consideration. 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). _________________________________________________ MARJORIE A. AUER 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).