Citation Nr: 1327917 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 02-15 035A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for brain tissue necrosis, including as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Veteran, and Subject Matter Expert ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from October 1956 to September 1958. The Veteran also had four years, two months, and twenty days of earlier service. The Veteran died in August 2009 and the appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) following a May 2002 decision of the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2004, the Veteran moved and his claims files were transferred to the RO in St. Petersburg, Florida. In July 2007, the Veteran was afforded a hearing before the undersigned. The Veteran testified, along with the appellant, and a subject matter expert on the history of various ships, to include the U.S.S. Calhoun (the ship that the Veteran was on during active service). The transcript of this hearing is of record. As noted herein, the Veteran died in August 2009; and in October 2009 the appellant filed a claim for substitution. The Board notes that the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), created new 38 U.S.C.A. § 5121A, permitting substitution in case of death of a claimant who dies on or after October 10, 2008, and requiring an eligible person to file a request to be substituted as the claimant for purposes of processing the claim to completion not later than one year after the date of the claimant's death. In an April 2011 action, the RO determined the appellant qualified as the proper substituted claimant in this claim. Based on the evidence, the Board is in agreement with this action. The case was brought before the Board in August 2007 and January 2012, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the appellant in the development of the claim. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issues on appeal. 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 This claim has a lengthy procedural history, but unfortunately the claim must once again be remanded for additional development and to ensure compliance with prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it does not ensure compliance with prior remand instructions). Initially, the Board finds that during the Veteran's lifetime, he submitted evidence of award of Social Security Administration (SSA) disability benefits. Specifically, in June 1989, the Veteran was found disabled as of August 30, 1988. VA must request the Veteran's SSA medical records in conjunction with his application for benefits. See Hayes v. Brown, 9 Vet. App. 67 (1996) (holding where VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision and the supporting medical documents on which the decision was based). The claim was previously remanded on two occasions to ensure all relevant military records were obtained, dates of service were confirmed, and to ensure compliance with all relevant provisions of 38 C.F.R. § 3.311, for entitlement to service connection for radiogenic diseases. The Veteran, during his lifetime, and the appellant, maintain that he was exposed to ionizing radiation while on board the USS Calhoun due to ongoing duties where he would dump radioactive waste overboard. He testified during his July 2007 hearing before the Board that he would dump tons of waste at least once a week during his two year service on board the USS Calhoun County from 1957 to 1958. As a result of this exposure, the Veteran claimed he developed a brain lesion, causing seizures and ultimately diagnosed as brain tissue necrosis. His first seizure was in August 1988, thirty years after service. At first, the lesion was suspected to be a tumor, but that was subsequently ruled out. The record indicates the RO made extensive efforts to substantiate the Veteran's claims. It is unclear, however, that service records are currently complete. Specifically, prior statements from the Veteran indicate his claim that he was hospitalized for two weeks during service for vomiting and skin peeling. During his hearing before the Board, specifically, he indicates he was sick on the ship and was sent to St. Albans Naval Hospital, Long Island. He testified he was kept for a week with vomiting and peeling skin. In contrast, service treatment records merely show a history of stomach problems in 1953 (with no recurrence), but no actual hospitalization records. Service treatment records, moreover, are silent as to a brain lesion, but the Veteran did indicate on his September 1958 separation examination that he worked with radioactive substance while serving aboard the USS Calhoun County in disposal of radioactive waste. The AMC must make efforts to ensure the hospitalization records are obtained, to the extent they exist, and any other missing service treatment records from 1952 to 1960. After service, although the Veteran's brain lesion did not turn out to be a tumor (and, thus, not on the list of diseases presumptively associated with radiation under 38 C.F.R. § 3.309(d)), the Veteran submitted private opinions from Dr. Worthington (in September 2001), and Dr. Scheel (in April 2002), indicating the Veteran's brain lesion could possibly be a delayed effect of ionizing radiation depending, in part, on the amount of exposure. Based on these opinions, the RO construed the Veteran's brain lesion as a radiogenic disease and referred the matter to the Under Secretary for Health in order to obtain a radiation dose assessment pursuant to 38 C.F.R. § 3.311(a)(1). The United States Navy indicated in February 2003, November 2003, and February 2006 that the Veteran's name was not specifically listed as having had radiation exposure although radiation "risk activity" was confirmed. Based on radiation dose amounts of fellow crew members for 1958 and 1959, the Navy provided an opinion that the maximum amount of radiation his fellow crewmembers were exposed to in those years was .52 roentgens (rem). (See November 2003 US Navy letter). A dose assessment from the Under Secretary for Health was also conducted in June 2004, where the physician noted the .52 rem dose assessment calculation and opined that this would not be enough to cause a brain lesion because hundreds or thousands of rems of exposure would be needed. As explained in the Board's July 2007 remand, this June 2004 estimate did not specifically state that it was calculated using the revised methodology outlined in the May 8, 2003, report from the National Research Council (NRC). See BVA Fast Letter 04-02 (September 20, 2004). A remand was required to obtain a new dose assessment. During the pendency of the appeal, however, the Veteran submitted a private opinion from a neuro-physicist, Dr. Morgan, dated in July 1990. The statement was made in connection with a different veteran's claim, but a veteran that nonetheless served on the USS Calhoun at the same time as the Veteran here. In the July 1990 statement, Dr. Morgan found the .475 rem estimate for the fellow serviceman was grossly underestimated and that any person who rolled these types of barrels off the side of the ship would receive "a few tens of rems." Under 38 C.F.R. § 3.311(a)(3)(ii), if there is another dose estimate from a "credible source" that is at least double the Under Secretary for Health's dose assessment, then the matter must be referred to an independent expert for another estimate. On remand, the AMC merely obtained a new dose assessment from the Under Secretary for Health. In an August 2010 opinion, rather than actually doing a dose assessment, the Under Secretary accepted Dr. Morgan's assessment of "a few tens of rems" and opined that even if the Veteran was exposed to 40 rems it would not be enough to cause a brain lesion over 30 years later. While the opinion is based on a review of the record, and presumed Dr. Morgan's dose assessment, the opinion is not compliant with the remand directive or the applicable regulation, 38 C.F.R. § 3.311. On remand, the VA must obtain a new radiation dose estimate by an independent expert in accordance with applicable methodology. See id. Lastly, given the above development, VA should obtain an addendum to the July 2004 and August 2010 medical opinions previously obtained from the Under Secretary for Benefits as to the relationship, if any, between the Veteran's brain tissue necrosis and his exposure to radioactive and/or chemical waste while serving on the U.S.S. Calhoun County in 1957 and 1958. Id. § 3.311(b)(1). 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. Contact the Social Security Administration (SSA) for the purpose of obtaining a copy of the decision and all medical records relied upon in conjunction with any claim filed by the Veteran for SSA disability benefits. Any attempts to obtain records that are ultimately unsuccessful, must be documented in the claims folder. 2. Contact NPRC, the US Navy, and any other pertinent organizations to obtain any missing service treatment records, to include hospitalization records from 1953, or hospitalization records from 1957 to 1958 at St. Albans Naval Hospital, Long Island. Any and all efforts to obtain these records must be documented in the claims folder and federal agencies are required to provide a negative response if no records are available. 3. After completing the above, and obtaining any and all records, obtain a new radiation dose estimate from an independent expert in compliance with 38 C.F.R. § 3.311(a)(3) and the May 8, 2003 NRC report, which takes into account any additional radiation exposure information obtained pursuant to the above development. 4. After completing 1-3 above, and obtaining any and all records, obtain an addendum to the August 2010 medical opinion previously obtained from the Under Secretary for Benefits as to the relationship, if any, between the Veteran's brain tissue necrosis and his exposure to radioactive and/or chemical waste while serving on the USS Calhoun County in 1957 and 1958. A copy of the claim's file and any pertinent Virtual VA records should be forwarded to the medical body providing the addendum. After a review of the record on appeal, the medical body providing the addendum should state whether it is "at least as likely as not" (50 percent probability) that current brain tissue necrosis was caused or aggravated by military service, including the Veteran's documented exposure to radiation and/or chemical waste products serving on the USS Calhoun County in 1957 and 1958? 5. Then, readjudicate the claim on appeal. The RO/AMC is advised that it is to make a determination based on the law and regulations at the time of their decision, to include any further changes in the VCAA and any other applicable legal precedent. If the benefit sought on appeal remains denied, the appellant and her representative should be provided a supplemental statement of the case (SSOC). A reasonable period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter 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 2002 and Supp. 2012). _________________________________________________ L. M. BARNARD Acting 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).