Citation Nr: 1327085 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 04-04 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the Veteran's death, to include as due to ionizing radiation exposure, for purposes of receiving Dependency and Indemnity Compensation (DIC). REPRESENTATION Appellant represented by: AnnMarie D. Mulcahey Leikauf, Esq. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from April 1944 to February 1946, including in combat in World War II. He died in August 2002. The Appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied the Appellant's claim of entitlement to service connection the cause of the Veteran's death, to include as due to ionizing radiation exposure, for purposes of receiving Dependency and Indemnity Compensation (DIC). The Appellant disagreed with this decision in February 2003. She perfected a timely appeal in January 2004. In March 2006, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. The Board subsequently denied the Appellant's claim in July 2007. The Appellant, through her attorney, appealed the Board's July 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In October 2009, both the Appellant, through her attorney, and VA's Office of General Counsel, filed a Joint Motion for Remand (Joint Motion) with the Court. The Court granted the Joint Motion later in October 2009, vacating and remanding the Board's July 2007 decision. In January 2011, the Board remanded this matter again to the RO/AMC for additional development. The appeal is REMANDED again to the RO. VA will notify the Appellant if further action is required on her part. REMAND The Appellant contends that the cause of the Veteran's death is related to active service. She specifically contends that the Veteran was exposed to ionizing radiation while taking and handling x-rays during a 3-month period in service when his military occupational specialty (MOS) was medical technician. She also contends that this in-service exposure to ionizing radiation as a medical technician caused the Veteran's fatal acute myeloid leukemia (AML) in 2002. Unfortunately, the Board finds that additional development is required before this claim can be adjudicated on the merits. In the October 2009 Joint Motion for Remand (Joint Motion), both parties asserted that VA had erred by not "attempt[ing] to obtain an occupational radiation exposure report or the Veteran's service personnel records which address his duties and assignments during his time in service." See Joint Motion dated October 1, 2009, at pp. 7. Both parties also contended that the Board had erred in its July 2007 decision by not considering the applicability of 38 C.F.R. § 3.311 in adjudicating the Appellant's claim, particularly in light of the fact that the cause of the Veteran's death was AML and leukemia (other than chronic lymphocytic leukemia (CLL)) is considered a "radiogenic disease" under 38 C.F.R. § 3.309(d). Id., at pp. 8-9; see also 38 C.F.R. § 3.309(d). As noted in the Introduction, the Court granted the Joint Motion later in October 2009, vacating and remanding the Board's July 2007 decision. Pursuant to the Court's Order granting the Joint Motion, in its January 2011 remand, the Board directed the RO, in part, to request radiation dose information from the U.S. Army (the relevant service department in this case). The Board also directed the RO to ask the U.S. Army "to indicate whether any of the assignments and duties performed by the Veteran meet the definition of a 'radiation-risk activity' under 38 C.F.R. § 3.309." See Board remand dated January 10, 2011, at pp. 7-8. The Board advised the RO that its request to the U.S. Army "should focus on soldiers who performed similar duties." Id., at pp. 8. A review of the claims file shows that not all of the information requested by the Board in its January 2011 remand was obtained by the RO. The RO properly sent a letter to the U.S. Army Medical Command on October 9, 2012, requesting information concerning a radiation dose estimate for the Veteran. The U.S. Army Medical Command subsequently forwarded the RO's request to the U.S. Army Ionizing Radiation Dosimetry Center on October 23, 2012. The U.S. Army Medical Command also notified the RO in a letter dated on October 23, 2012, and date-stamped as received by the RO on October 31, 2012, that it had forwarded VA's request for information concerning a radiation dose estimate for the Veteran to the U.S. Army Ionizing Radiation Dosimetry Center. This letter also stated: Your request also mentions the possibility of a request to accomplish a dose reconstruction for this Veteran. If you are requesting a formal dose reconstruction, we ask that you resubmit your request with the following: the Veteran's personnel records indicating exact dates and locations of assignments, a fully completed Radiation Exposure Questionnaire, and any additional information which could help identify duties with, or around, radiation sources...If your request is a more general request regarding the likelihood that the Veteran's assignments and/or duties met the definition of a Radiation Risk Activity and would have exposed him to radiation in addition to any exposure routinely documented on a DD Form 1141, please advise. There is no record of a response from the RO to the U.S. Army Medical Command's October 23, 2012, letter, seeking additional relevant information pertaining to the Board's January 2011 remand directive about obtaining a radiation dose estimate for the Veteran and a determination of whether he participated in a "radiation-risk activity" during service. It is not clear from a review of the claims file why the RO did not respond to this letter by providing the additional information requested by the U.S. Army Medical Command in order to obtain a radiation dose estimate for the Veteran and to determine whether he participated in a "radiation-risk activity" during service (as directed by the Board's January 2011 remand). The U.S. Army Dosimetry Center subsequently notified the RO in a letter dated on October 29, 2012, and date-stamped as received by the RO on November 15, 2012, that it had no records of in-service ionizing radiation exposure for the Veteran. This facility noted that its records only dated back to mid-1954. In its January 2011 remand, the Board also directed the RO to forward the Veteran's claims file to the Undersecretary for Health "for preparation of an estimate of the Veteran's probable dose exposure to ionizing radiation in service" after radiation dose information was provided by the relevant service department (in this case, the U.S. Army). Id. Once the Undersecretary for Health prepared a radiation dose estimate for the Veteran, the RO was asked to determine whether the claim "requires any further review" by the Undersecretary for Benefits under 38 C.F.R. § 3.311(c). Id., at pp. 8-9. A review of the claims file shows that the RO did not send the claims file to the Undersecretary for Health to prepare a radiation dose estimate after receiving the October 23, 2012, letter from the U.S. Army Medical Command. There also is no indication in the claims file that the RO made any determination as to whether the Appellant's claim needed additional review by the Undersecretary for Benefits. Having reviewed the record evidence, the Board finds that there is insufficient evidence to adjudicate the Appellant's claim of service connection for the cause of the Veteran's death. The Board notes in this regard that compliance by the RO with its January 2011 remand directives is not discretionary. The Board also notes that it is bound by the Court's Order granting the Joint Motion in this case. Given the foregoing, the Board finds that, on remand, the RO should provide the additional information requested by the U.S. Army Medical Command on October 23, 2012, in order to obtain a radiation dose estimate for the Veteran and to determine whether he participated in a "radiation-risk activity" during service. Once the U.S. Army Medical Command responds with the Veteran's radiation dose estimate and a determination of whether he participated in a "radiation-risk activity" during service, then the RO must forward the claims file to the Undersecretary for Health to prepare a radiation dose estimate for the Veteran. Once the Undersecretary for Health provides a radiation dose estimate for the Veteran, then the RO must determine whether this claim should be sent to the Undersecretary for Benefits for additional review. See generally 38 C.F.R. §§ 3.311(a)(2)(iii), (b), and (c). In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the Appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO to re-certify this appeal to the Board in May 2013 without complying with the January 2011 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Forward a copy of the Veteran's available service personnel records currently associated with the claims file (WD AGO Form 100) and a completed Radiation Exposure Questionnaire, if available, to the U.S. Army Medical Command, Fort Sam Houston, Texas. Ask the U.S. Army Medical Command to provide a formal ionizing radiation dose reconstruction for the Veteran and to determine whether the Veteran's in-service duties as a medical technician for 3 months met the definition of a "radiation-risk activity" and would have exposed him to ionizing radiation. Advise the U.S. Army Medical Command that it is alleged that the Veteran's in-service duties for 3 months as a medical technician exposed him to ionizing radiation from taking and handling x-rays. Inform the U.S. Army Medical Command that, because the Veteran is deceased and his service records likely were lost in a July 1973 fire at the NPRC, additional information concerning his alleged in-service ionizing radiation exposure is not available. A copy of any letter sent to the U.S. Army Medical Command, and any response, should be included in the claims file. 2. After the U.S. Army Medical Command responds with a formal ionizing radiation dose reconstruction for the Veteran and a determination of whether he participated in a "radiation-risk activity" during service, forward the claims file to the Undersecretary for Health to prepare a radiation dose estimate for the Veteran. A copy of any letter sent to the Undersecretary for Health requesting a radiation dose estimate for the Veteran, and any reply, should be included in the claims file. 3. After the Undersecretary for Health responds with a radiation dose estimate for the Veteran, the RO should review that estimate and determine whether any additional development of this claim is required, to include whether it should be sent to the Undersecretary for Benefits. A copy of any determination that additional development is required, to include any letter sent to the Undersecretary for Benefits requesting additional review of this claim, should be included in the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Appellant's claim. If the determination remains unfavorable to the Appellant, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Appellant and her attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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).