Citation Nr: 1335437 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-14 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for sterility and/or impotence claimed as due to exposure to ionizing radiation. 2. Entitlement to special monthly compensation for loss of use of a creative organ claimed as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran had active duty service from October 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and August 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA) located in St. Louis, Missouri. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran is claiming that he currently experiences impotence and sterility as a result of exposure to ionizing radiation during active duty. The service records document that the Veteran was exposed to ionizing radiation while serving on a nuclear powered ship, the USS Long Beach. Service connection for a disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Ramey v. Brown, 9 Vet. App. 40 (1996). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed Veteran. A "radiation-exposed Veteran" is one who participated in a radiation-risk activity. A "radiation-risk activity" includes onsite participation in a test involving the atmospheric detonation of a nuclear device or participation in the occupation of Hiroshima or Nagasaki between August 6, 1945 and July 1, 1946. 38 U.S.C.A. § 1112(c) (West 2002); 38 C.F.R. § 3.309(d) (2013). As for the second avenue of recovery, certain "radiogenic" diseases found five years or more after service in an ionizing-radiation-exposed Veteran may be service-connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are likewise linked medically to ionizing radiation exposure while in service. 38 C.F.R. § 3.311(b)(2) (2013). Radiogenic diseases include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. See 38 C.F.R. § 3.311(b). Regarding the third avenue of recovery, a Veteran may also establish service connection for his disability on a direct basis. 38 C.F.R. § 3.303 (2013). The fact that a Veteran is not entitled to presumptive service connection as a result of exposure to ionizing radiation does not preclude an evaluation as to whether a Veteran is entitled to service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran's representative wrote in a June 2013 Informal Hearing Presentation that there was evidence in the scientific community that excessive exposure to ionizing radiation can cause damage to organ tissues and sterility. The Board finds that, if such evidence exists, it would be pertinent to the Veteran's claim. As the Board is on notice that such evidence is potentially available, the Board finds that a remand is required to obtain it, if possible. As the issue on appeal is being remanded for additional evidentiary development the Veteran should be provided with another opportunity to submit any evidence he has in support of his claim. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims including any records which provides evidence of a link between sterility and/or impotence and his exposure to ionizing radiation during active duty. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Contact the Veteran's representative to provide any documentation which provides evidence of a link between sterility and/or impotence and the Veteran's exposure to ionizing radiation during active duty as contended in the Informal Hearing Presentation. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If the issues on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).