Citation Nr: 1334309 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-09 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the residuals of a brain tumor, to include as secondary to exposure to radiation, herbicides, and asbestos. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from February 1969 to February 1973. This matter arises before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran requested a video conference hearing that was scheduled for August 29, 2013, at the New Orleans RO. The record reflects that the Veteran failed to report for his hearing. If a Veteran fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case proceeds as though the request for a hearing has been withdrawn. 38 C.F.R. § 20.704(d) (2013). Since the Veteran did not request postponement, his hearing request is deemed withdrawn. A review of the Virtual VA paperless claims processing system does not reveal any additional evidence pertinent to the claim on appeal. 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 Veteran contends that he has suffered from brain cancer as a result of his exposure to radiation while serving as a Navy avionics electronic technician. More specifically, the Veteran contends that his meningioma was caused by exposure to radiation from ships' radars, aircraft radar, and other transmissive equipment, namely fire control systems. Post-service treatment records reveal a diagnosis of a benign meningioma that was removed in March 2011. Service personnel records confirm that the Veteran was assigned to the Naval Air Technical Training Center at Naval Air Station Memphis from May 1969 to October 1969 and Attack Squadron One Two Five at Naval Air Station Lemoore, California, from November 1969 to February 1973. Brain cancer is listed as a radiogenic disease under 38 C.F.R. § 3.311(b) (2013). VA regulations provide that a request must be made for any available records concerning the Veteran's purported exposure to radiation, including but not limited to, a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) and service medical records. The RO/AMC should then forward all such records to the Under Secretary for Health, who will be responsible for preparing a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2013). If no such records are available, the RO/AMC should continue to develop a veteran's claim under the procedures provided in 38 C.F.R. § 3.311 (2013), including requesting dose data and/or estimate(s) from the appropriate source(s), including the Defense Threat Reduction Agency (DTRA) (previously known as the Defense Nuclear Agency). Thereafter, the RO/AMC should forward this case to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c) (2013), to include an opinion from the VA Under Secretary for Health as to whether it is at least as likely as not that the Veteran's brain cancer was caused by his purported radiation exposure in service. The Veteran has also alleged that he was exposed to asbestos aboard Navy ships and herbicides in Vietnam. In this regard, the Board notes that the Veteran's DD Form 214 and available personnel records fail to show that he had any foreign service. It is also unclear whether he served on any U.S. Navy ships. The Veteran's Benefit Administration (VBA)'s Adjudication Procedure Manual, M21-1MR, details the development required to verify herbicide exposure in locations other than the Republic of Vietnam or along the Demilitarized Zone of Korea. Specifically, a veteran's description of such exposure should be furnished to Compensation & Pension (C&P) service to request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as alleged. If this C&P service review did not confirm that herbicides were used as alleged, a request is to be submitted to the United States Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n). Such a request should be made on remand. In addition, the Veteran submitted opinions from his treating physician in July 2011 and March 2013. His physician opined that it was possible that the Veteran's brain cancer was caused by exposure to radiation in service. To support these opinions, the Veteran submitted an article from MedicineNet.com that stated that people exposed to ionizing radiation may have an increased risk of meningioma and an article from the World Health Organization asserting that small military fire control radars on aircraft can be hazardous to ground personnel due to their relatively high average powers and small area antennas. Under its duty to assist, VA must provide a compensation and pension examination to a Veteran when the information and evidence of record (1) contains competent lay or medical evidence of a currently diagnosed disability; (2) establishes that the Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R §§ 3.309, 3.313, 3.316, and 3.317 manifesting during the applicable presumptive period if the Veteran has the required service to trigger the presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i) (2013). Given the speculative nature of the aforementioned opinions, the Board finds that a VA examination is required. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to clarify his alleged exposure to asbestos, herbicides, and radiation during service, to include dates, locations, and assignments. 2. The RO/AMC should then make an attempt to verify the Veteran's alleged exposure to radiation during his period of active military service. Specifically, the RO should ask the JSRRC or other appropriate agency, to include the Navy Surgeon General if appropriate, to provide any available records concerning the Veteran's exposure to radiation, including but not limited to, a Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) and the Veteran's complete official military personnel file. All efforts made should be fully documented and negative responses should be included in the file if no records are found. 3. After the completion of the development listed above, the RO/AMC should forward the Veteran's claims file to the Under Secretary for Benefits. If the RO/AMC is unable to obtain radiation dose data for the Veteran, the VA Under Secretary for Health should generate a radiation dose estimate. In addition, an expert opinion from the Under Secretary for Health or referral to an outside consultant for medical opinion, as deemed appropriate, should be obtained as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran's brain cancer resulted from exposure to radiation in service. 4. Following the completion of the development listed above, and in the event that the VA Under Secretary for Health did not provide an opinion sufficient to substantiate the Veteran's claim for service connection, the RO/AMC should contact the JSRRC to verify whether the Veteran was exposed to herbicides or asbestos during his period of active military service. All efforts to obtain these records, and the responses received, must be documented in the claims file and must continue until it is reasonably certain that the records do not exist or that further efforts to obtain such verification would be futile. 5. Following the completion of the development listed above, the RO/AMC should afford the Veteran a compensation and pension examination with an appropriate examiner to determine the nature and etiology of the Veteran's brain cancer. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's brain cancer had its onset during the Veteran's period of active military service; or, was any such disorder caused by any incident or event that occurred during his period of service? The examiner should specifically comment on the speculative opinions from the Veteran's treating physician and the medical treatises in the claims file. (b) If the Veteran's purported herbicide and asbestos exposure is confirmed by the JSRRC, the examiner should provide an opinion as to the relationship, if any, between this exposure and his brain cancer. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 6. If any benefit sought on appeal remains denied, the RO/AMC should issue a supplemental statement of the case, before the claims file is returned to the Board, if otherwise 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. 2013). _________________________________________________ CHERYL L. MASON 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) (2013).