Citation Nr: 1329097 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-00 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to ionizing radiation exposure. 2. Entitlement to service connection for skin cancer, to include as due to ionizing radiation exposure. 3. Entitlement to service connection for a heart disability, to include as secondary to service-connected restrictive ventilatory defect. 4. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure and/or as secondary to service-connected restrictive ventilatory defect. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from January 1946 to November 1947. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appeal was certified to the Board by the RO in Wichita, Kansas. In August 2010, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. In October 2010, the Board remanded the claims for additional development. In October 2012, the Board requested medical opinions from the Veterans Health Administration (VHA), which were provided in May 2013. 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the appellant's claims. See 38 C.F.R. § 19.9 (2012). Prostate Cancer and Skin Cancer The Veteran alleges that his prostate cancer and skin cancer are related to ionizing radiation exposure in service. Specifically, while serving on the USS Kennebec, the ship docked to deliver fuel at the Kwajalein Atoll in the Marshall Islands on December 3-4, 1946. Historical articles indicate that the Kwajalein Atoll was the main support site for Operation Crossroads, a U.S. test of nuclear devices in July and August 1946. While nuclear devices were not detonated at the Kwajalein Atoll, ships involved in Operation Crossroads (as targets) were apparently brought to the Kwajalein Atoll for decontamination in the months before the USS Kennebec arrived in port. The ship then embarked to Guam and remained there until December 20, 1946. During this time period, the Veteran and one of his comrades reported that they were told to avoid seawater as it was polluted from the atomic bomb tests. However, they had no other option and used the seawater for food preparation, bathing, and washing clothes. On further review and reassessment of the case, the Board finds that the developmental procedures of 38 C.F.R. § 3.311 apply to these two claims. Section 3.311 provides a special procedural framework for development of claims based on exposure to ionizing radiation if the claimed disorder is a radiogenic disease. Prostate cancer and skin cancer are considered radiogenic diseases under 38 C.F.R. § 3.311(b)(2) and both manifested 5 years or more after the Veteran's exposure. 38 C.F.R. 3.311(b)(5)(iv) (2012). In September 2012, the Defense Threat Reduction Agency (DTRA) provided a maximum dose estimate of .021 rem based on the Veteran's reported exposure; however, the claims were not referred to the Under Secretary for Benefits for review in accordance with 38 C.F.R. § 3.311(c). Therefore, the Board finds that a remand is necessary for this additional development in order to give the Veteran every consideration with respect to the appeal and to accord him due process of law. Heart Disability and Sleep Apnea The Veteran asserts that his heart disability and sleep apnea are related to service or are secondary to (caused or aggravated by) his service-connected restrictive ventilatory defect. A VA examination and medical opinion was obtained for sleep apnea in June 2011. As noted above, the Board also obtained VHA opinions regarding both claims in May 2013. None of the opinions, however, adequately address whether the Veteran's service-connected restrictive ventilatory defect aggravates his heart disability or sleep apnea. Although the physician who provided the May 2013 VHA opinion concluded that the Veteran's heart condition and sleep apnea were not "aggravated by" his restrictive ventilatory defect, the supporting rationale for this opinion only addresses causation. The physician did not provide any supporting rationale addressing the question of aggravation. Regarding the claimed heart disability, the physician who provided the May 2013 VHA opinion noted that the only heart condition found from a review of the records was related to a pacemaker, which was implanted for bradycardia with secondary degree heart block in 2002. However, a February 2012 chest CT scan (as reported in the March 2012 VA examination report) showed that the Veteran's heart was mildly enlarged and that there was atherosclerotic disease of the thoracic aorta and coronary arteries. The impression was "mild cardiomegaly." The significance of these findings is unclear; however, they seem to suggest that the Veteran has additional heart disability that was not addressed by the VHA opinion. For these reasons, the Board finds that a remand is necessary to obtain an additional VA medical opinion relating to the Veteran's claimed heart disability and sleep apnea. If the designated reviewer determines that additional VA examinations are necessary to render the requested opinions, these should be conducted as well. Outstanding VA Treatment records The record reflects that the Veteran receives ongoing treatment at the Wichita VA Medical Center VAMC). An attempt should be made to obtain any outstanding treatment records. Accordingly, the case is REMANDED for the following actions: (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. Ensure development of the claims of entitlement to service connection for prostate cancer and for skin cancer in accordance with 38 C.F.R. § 3.311, consistent with VA Adjudication Manual, M21-1MR, Part IV.ii.1.C. This must include review by the Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c). 2. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran. Specifically, this should include any treatment records from the Wichita VAMC since April 2012. All records/responses received should be associated with the claims file. 3. After the above development is completed, obtain a medical opinion from an appropriate medical professional addressing the nature and etiology of the Veteran's claimed heart disability and sleep apnea. If another medical examination is needed in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and all findings reported in detail. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is to provide an opinion as to whether the Veteran's service-connected restrictive ventilatory defect causes or aggravates his heart disability and sleep apnea. A response to both aspects of the secondary service connection claim must be provided (i.e., causation and aggravation). If aggravation is found, the examiner should identify the baseline level of severity of the nonservice-connected disability to the extent possible. Note: The term "aggravated" in the above context refers to a permanent worsening, beyond the natural progress, of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the appellant should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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). The claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ BARBARA C. MORTON 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).