Citation Nr: 1329356 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-21 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as due to exposure to ionizing radiation. 2. Whether there is new and material evidence to reopen a previously denied claim for service connection for a disability manifested by muscle and joint pains, also including as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to August 1991. He appealed to the Board of Veterans' Appeals (Board/BVA) from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, among other things, the RO declined to reopen his claim of entitlement to service connection for muscle and joint pains. But irrespective of what the RO decided concerning whether there is new and material evidence to reopen this claim, so, too, must the Board make this threshold preliminary determination before proceeding further because this initial determination affects the Board's jurisdiction to consider this claim on its underlying merits. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992). The Board previously denied these claims in an October 2012 decision. The Board denied the claim for service connection for diabetes based on a finding that the Veteran did not have a then current diagnosis of this condition, so also not the required attribution of this condition to his military service. His attorney, however, subsequently filed a motion in November 2012 for reconsideration of that decision. She cited private medical records showing a diagnosis of diabetes mellitus that had been mailed to the RO in March 2011, so well before the Board's decision, which therefore confirmed he has this condition. A contemporaneously issued May 2011 statement of the case (SOC) also had confirmed these records were available to the RO at that time. However, these records were not in the Board's possession at the time of the October 2012 decision and, consequently, not considered in rendering that decision. In addition, VA treatment records dated between July 2005 and October 2010 were also in VA's possession but not associated with the claims file, and therefore also not considered by the Board in that decision. This was significant because records in the physical possession of VA that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether the records are actually physically in the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). For this reason, the Board's October 2012 decision constituted a denial of due process. So, to correct this error, the Board since has issued an August 2013 Order vacating that October 2012 denial of service connection for diabetes and the denial of the petition to reopen the claim for a disability manifested by muscle and joint pains. These claims require further development before being readjudicated, however, so the Board is remanding them to the RO. REMAND As already alluded to, VA treatment records dated from July 2005 were not associated with the claims file at the time of the Board's October 2012 decision. A current review of the claims file, both the physical file and electronic ("Virtual VA") file also shows these records remain outstanding. Therefore, they must be obtained and considered since potentially relevant. 38 C.F.R. § 3.159(c)(2). Service connection for conditions, as here, claimed to be the result of exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in "radiation-exposed Veterans" under 38 U.S.C.A. § 1112(c)(1), (2) and 38 C.F.R. § 3.309(d)(1), (2). The term "radiation- exposed Veteran" means a Veteran who participated in a "radiation-risk activity." See 38 U.S.C.A. § 1112(c)(3)(A); 38 C.F.R. § 3.309(d)(3)(i). The term "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device for Operation DOMINIC I (April 25, 1962 through December 31, 1962) and Operation DOMINIC II/PLOWSHARE (for the period from July 6, 1962 through August 15, 1962). 38 U.S.C.A. § 1112(c)(3)(B); 38 C.F.R. § 3.309(d)(3)(ii), (iv). Diseases presumptively service connected for radiation- exposed Veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d) are: leukemia (other than chronic lymphocytic leukemia (CLL)), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. If a claimant does not qualify as a "radiation-exposed Veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), he may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if he suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1). When dose estimates provided are reported as a range of doses to which a Veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. 38 C.F.R. § 3.311(a)(2). When it has been determined that a Veteran has been exposed to ionizing radiation in service, and he subsequently develops a potentially radiogenic disease, the claim will be referred to the Under Secretary for Benefits (USB) for further consideration. The USB is to consider the claim with reference to specified factors and may request an advisory medical opinion from the Under Secretary for Health; if, after this consideration, the USB determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the USB shall so inform the RO in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311. Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense (DoD) in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to radiation. These 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 treatment records (STRs), and other records that may contain information pertaining to his radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a Veteran has a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of his active military service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing his entitlement to service connection by way of proof of actual direct causation. In addition, VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter 1, section C, paragraph 7(a) provides specific guidelines on the development of claims based on exposure to ionizing radiation. The Veteran claims exposure to ionizing radiation from depleted uranium and repair of radar equipment. So, on remand, the RO/AMC must undertake the appropriate development to verify his ionizing radiation exposure in service. If the aforementioned development verifies his exposure to ionizing radiation in service, then he should be scheduled for a VA examination for a medical nexus opinion concerning whether his diabetes mellitus and claimed muscle and joint pains, previously diagnosed as degenerative joint disease (DJD), i.e., arthritis, are etiologically related to that exposure. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Obtain the Veteran's VA treatment records for the period from July 2005 through the present and associate them with the claims file for consideration. 2. In accordance with Court precedents and VA Adjudication Procedure Manual, M21- 1MR, part IV, subpart ii, chapter 1, section C, paragraph 7(a), conduct the appropriate development to determine whether the Veteran was exposed to ionizing radiation during his service, including especially from exposure to depleted uranium and working with radar equipment. Also, if shown to be warranted, obtain the required dose estimate. 3. If, and only if, his exposure to ionizing radiation is verified, then he should be scheduled for a VA compensation examination with an appropriate examiner for a medical nexus opinion concerning the etiology of his diagnosed diabetes mellitus and muscle and joint pains that, to date, have been attributed to degenerative joint disease (DJD), i.e., arthritis. The claims file therefore must be made available to the examiner for review, and the examination report must clearly state that the claims file was reviewed as part of the examination. All necessary diagnostic testing and evaluation must be performed. The examiner must specifically indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's diabetes mellitus and/or muscle and joint pains from degenerative joint disease are related or attributable to his military service, including especially to his alleged exposure to ionizing radiation in the manners claimed. It is most essential the examiner discuss the underlying medical rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. 4. Ensure the opinion is responsive to this determinative issue of etiology. If not, take corrective action. 38 C.F.R. § 4.2. 5. Then readjudicate these claims in light of this and all other additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his attorney a supplemental SOC (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 these 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).