Citation Nr: 1336808 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-32 999 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for thyroid cancer as a result of exposure to ionizing radiation. 2. Entitlement to service connection for breast cancer, including residuals from surgery, as a result of exposure to ionizing radiation. 3. Entitlement to service connection for right arm nerve damage as secondary to breast cancer. 4. Entitlement to service connection for compromised immune system as secondary to cancer treatment. 5. Service connection for cancerous tumors in the neck as secondary to thyroid cancer. 6. Service connection for a right hip condition as secondary to cancer. REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from March 2010 and April 2010 rating decisions issued by the Regional Office (RO) in Roanoke, Virginia. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran contends that she was exposed to ionizing radiation in service. Specifically, she contends that ammunition that was stored and used at the firing range at3 Fort Jackson, South Carolina contained depleted uranium and that she was exposed to this during training on the firing range. She contends that she was re-exposed to radiation on another firing range while on temporary duty at Schofield Barracks, Hawaii. She also submitted an article stating that depleted uranium had been used at Schofield Barracks in the 1960s and that residue remained, although this was not felt to be harmful to human health. Subsequently, she developed various cancers, including breast cancer and thyroid cancer, which she believes are related to her alleged exposures to radiation. Breast cancer and thyroid cancer, as well as all other cancers, are considered "radiogenic diseases" pursuant to 38 C.F.R. § 3.311. When the Veteran claims exposure to ionizing radiation and subsequently develops a radiogenic disease within the applicable period, certain development is required. 38 C.F.R. § 3.311 indicates that most cancers, including breast cancer and thyroid cancer, must manifest more than five years after exposure. The Veteran's cancers meet these criteria. When a Veteran claims exposure to ionizing radiation and develops a radiogenic disease, the first step of the inquiry is to verify the claimed exposure. In this case, the RO's rating decisions indicate that ammunition containing depleted uranium was not used for training or combat while the Veteran was in service in the 1980s. However, the RO did not indicate a source for this information. Upon remand, the RO should take appropriate steps to investigate the Veteran's claims and document the sources for all information used to determine whether or not she was exposed to ionizing radiation. Also, the RO did not address her claim that she was exposed to ambient radioactive residue that she claims contaminated Schofield Barracks in Hawaii. After this investigation is completed, a dose estimate should be obtained per 38 C.F.R. § 3.311. If any exposure to radiation is confirmed, then the claim should be referred to the Undersecretary for Benefits for further consideration. Additionally, the Veteran submitted a letter from her doctor dated in March 2010 in which the doctor opined that the Veteran's cancers were "service related." The opinion contained no rationale and did not explain in what manner the Veteran's cancers were "service related." Because this encompasses potential causes other than exposure to ionizing radiation, a VA opinion should be obtained to determine whether any in service diseases or injury other than exposure to radiation led to the Veteran's cancers and complications of cancers. The Board acknowledges the contention of the Veteran's attorney that she should be afforded a VA examination by an oncologist to determine if her cancers are related to exposure to radiation in service. However, this is not necessary at this time because no exposure to radiation has been shown. The Veteran's lay statements are insufficient to establish exposure to ionizing radiation in this case. The Veteran has not been shown to have the expertise necessary to identify or quantify ambient radiation. Also, the fact that morning reports were rarely prepared in the 1980s does not raise any presumptions in favor of the Veteran. If exposure to radiation is shown, then the case will be subject to further development as stated in 38 C.F.R. § 3.311. Also, the Veteran submitted evidence that she is receiving Social Security Administration (SSA) disability benefits due to complications of her breast cancer treatment, which is one of the disabilities for which service connection is being claimed herein. Therefore, these records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the Veteran's SSA disability records and associate them with the claims file. If the records do not exist or cannot be obtained, then the efforts made to obtain the records should be documented in the claims file and the Veteran should be notified of VA's inability to obtain the records. 2. Conduct appropriate development to determine the Veteran's claimed exposure to radiation in accordance with 38 C.F.R. § 3.311, including contacting other agencies as necessary such as the Defense Threat Reduction Agency (DTRA) if warranted. The RO should provide citations and copies of all evidence used to make a determination as to whether radiation exposure occurred. Thereafter, obtain a dose estimate as set forth in 38 C.F.R. § 3.311. If radiation exposure is verified, conduct the further development required by 38 C.F.R. § 3.311. 3. Obtain a VA medical opinion addressing whether any disease or injury in service, other than the Veteran's claimed exposure to radiation, at least as likely as not (at least 50 percent likely) caused or aggravated her claimed conditions, including breast cancer, thyroid cancer, cancerous neck nodules, and complications of these cancers. An in-person examination is not necessary. 4. After completion of the above development, the Veteran's claims should be readjudicated. If the determinations remain unfavorable to the Veteran, she and her representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if warranted, the case should be returned to the Board for appellate disposition. 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. 2012). _________________________________________________ REBECCA FEINBERG 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).