Citation Nr: 1342082 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-09 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for colon cancer, to include as due to ionizing radiation and Agent Orange exposure. REPRESENTATION Appellant represented by: Andrew R. Rutz, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1964 to July 1967, to include service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). It is noted that this matter was previously before the Board in June 2012 when it was remanded for additional development. Additional claims were addressed in the June 2012 Board decision and are no longer on appeal. In July 2012, the Veteran withdrew his request for a personal hearing before a Veterans Law Judge (VLJ). Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702 (2012). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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 Unfortunately, and for reasons explained below, in order to comply with the legal duty to assist the Veteran, the Board finds that it must once again remand the claim for service connection for colon cancer, to include as due to ionizing radiation and Agent Orange exposure, for additional development action. Review of the record reflects that the claims file was prematurely returned to the Board prior to development of all the developmental directives requested in the Board's June 2012 remand. While it appears that the development requested in the first remand directive (for a revised radiation dose) was initiated, the resulting evidence is not of record. Moreover, it does not appear that the remaining remand directives have been accomplished. Therefore, the claim is remanded again for the development requested in the June 2012 remand. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (the Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the claim must be remanded for compliance with the 2012 Board remand. For purposes of clarity, the evidence and remand directives are provided below as they appeared in the Board's 2012 remand. The Board finds that additional evidentiary development, as outlined in the directives below, is necessary prior to final appellate review of the claim for service connection for colon cancer, to include as secondary to ionizing radiation and Agent Orange exposure. Specifically, to obtain a revised dose estimate, schedule a VA examination of the Veteran to determine the etiology of his colon cancer and for issuance of a Supplemental Statement of the Case (SSOC) that addresses evidence received by the Board in May 2012. The Veteran seeks service connection for colon cancer claimed as secondary to exposure to ionizing radiation and Agent Orange exposure. The Veteran contends that he was exposed to ionizing radiation as a result of having served as an aircraft propeller repairman while assigned to the 56th Weather Recon Squadron at Yokota Airbase (AB), Japan from August 1, 1964 to August 31, 1965. Alternatively, he maintains that his colon cancer is due to exposure to Agent Orange while serving in the Republic of Vietnam. With regard to radiation exposure claims, service connection for a disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209 (1997); Rucker v. Brown, 10 Vet. App. 67 (1997). (i) Presumptive Service Connection for Radiation-Exposed Veterans: There are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C.A. § 1112(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.309(d)(2) (2012). These cancers specific to radiation-exposed veterans for the purpose of presumptive service connection are the following: (i) leukemia (other than chronic lymphocytic leukemia); (ii) cancer of the thyroid; (iii) cancer of the breast; (iv) cancer of the pharynx; (v) cancer of the esophagus; (vi) cancer of the stomach; (vii) cancer of the small intestine; (viii) cancer of the pancreas; (ix) multiple myeloma; (x) lymphomas (except Hodgkin's disease); (xi) cancer of the bile ducts; (xii) cancer of the gall bladder; (xiii) primary liver cancer (except if cirrhosis or hepatitis B is indicated); (xiv) cancer of the salivary gland; (xv) cancer of the urinary tract (urinary tract means the kidneys, renal pelvis, ureters, urinary bladder, and urethra), (xvii) cancer of the bone; (xviii) cancer of the brain; (xix) cancer of the colon; (xx) cancer of the lung; and (xxi) cancer of the ovary. 38 C.F.R. § 3.309(d) (2) (2012). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(ii) (2012). (ii) Radiogenic Disease: "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311 (2012). Pursuant to 38 C.F.R. § 3.311 , 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. 38 C.F.R. § 3.311(b)(2) (2012). 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 38 C.F.R. § 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) (2012). 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) (2012). (ii) Direct Service Connection- Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309(d)(3) (presumptive service connection) and 38 C.F.R. § 3.311(b) (service connection based on the certain conditions specified in that regulation), the claim still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039(Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). The Veteran was diagnosed with colon cancer in August 1990. He did not engage in one of the specific radiation risk activities set forth in 38 C.F.R. § 3.309(d)(2) (such as onsite participation in atmospheric detonation of a nuclear device); accordingly, the presumptive provisions of 38 C.F.R. § 3.309 are not for application. The Veteran's colon cancer is, however, a presumptive cancer and is set forth in 38 C.F.R. § 3.311(b)(2) as a radiogenic disease. Further, it became manifest 5 years or more after the alleged radiation exposure, as required by 38 C.F.R. § 3.311(b)(5) (2012). Thus, the procedural development mandates under 38 C.F.R. § 3.311 for claims based on exposure to ionizing radiation are applicable. For claims involving atmospheric nuclear weapons test participation and the occupation of Hiroshima and Nagasaki, dose data will be requested from the Department of Defense. 38 C.F.R. § 3.311(a)(2)(i), (ii) (2012). In this case, the Veteran did not participate in those types of events. Instead, he reportedly was exposed to ionizing radiation while serving as an aircraft propeller repairman while assigned to the 56th Weather Recon Squadron at Yokota AB, Japan from August 1, 1964 to August 31, 1965. Therefore, his claim is covered by 38 C.F.R. § 3.311(a)(2)(iii) or "other exposure claims." For other exposure claims, a request will be made for any available records concerning the Veteran's exposure to radiation. In this case, in May 2009, the National Personnel Records Center informed the RO in May 2009 that DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, as well as other records of exposure to radiation pertaining to the Veteran, were not of record. However, the Veteran's service personnel records show that his military occupational specialty (MOS) was an aircraft propeller repairman and that he was assigned to the 56th Weather Recon Squadron at Yokota, Japan AB from August 1, 1964 to August 31, 1965. In October 2010, the AFTAC provided a dose estimate for the Veteran. In addition to the dose information request, the regulation compels the forwarding of all records pertaining to the Veteran's radiation dose in service to the Under Secretary for Health. He or she will be responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii) (2012). Once the dose estimate is prepared, before the claim is adjudicated, it must be referred to the Under Secretary of Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c) (2012). See 38 C.F.R. § 3.311(b)(1) (2012). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the Veteran's cancer resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i) (2012). If the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1) (2012). In the Veteran's case, The Under Secretary for Health provided the required opinion in January 2011. A. Revised Dose Estimate The record shows that in accordance with 38 C.F.R. § 3.311 (2012) the RO obtained a radiation dose estimate for the Veteran. The RO properly submitted the dose estimate to the Compensation and Pension Service Director who requested a medical opinion from the Under Secretary for Health. On review of the record, the Board observes that the RO, in its November 2009 request to the Radiation Protection Division of the Office of the Surgeon General of the Air Force for a radiation dose estimate, relayed information from the Veteran to the effect that between August 1, 1964 through August 31, 1965, he was an aircraft propeller repairman. After receipt of the above-cited information from the RO, the AFTAC concluded that the Veteran's exposure to ionizing radiation was 16.38 mrem or 0.1638 rem. (See AFTAC's August 2010 letter to the RO). However, and as noted by the Veteran's attorney, according to AFTAC's "SECRET WORKING PAPERS," it arrived at its conclusion based on 11 flights during a shortened time frame: May 20, 1965 to October 19, 1965. The Veteran was stationed with the 56th Weather Recon Squadron from August 1, 1964 to August 31, 1965. Thus, AFTAC'S 11-flight figure does not take into account flights that occurred from August to December 1964 and January through April 1965. Thus, in view of the foregoing, the Board finds that the Veteran's claim for service connection for colon cancer due to exposure to ionizing radiation should be returned to AFTAC, via the Office of the Surgeon General, for a revised radiation dose estimate that includes consideration of the Veteran's assignment to the 56th Weather Recon Squadron for the entire period from August 1, 1964 to August 31, 1965. After obtaining the requested revised radiation dose estimate, development should be completed pursuant to the provisions of 38 C.F.R. § 3.311 followed by readjudication of the claim for service connection for colon cancer. (B) VA examination In support of his claim for colon cancer due to ionizing radiation, the Veteran submitted a March 2009 statement, prepared by T. W. E., D. O. In that statement, Dr. T. E. concluded, after a review of the Veteran's service and post-service treatment records that his colon cancer was "at least as likely as not to be a direct result of the exposure to ionizing radiation that he experienced in the service." Dr. T. E. did not provide any rationale for his opinion. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Notwithstanding the foregoing, the Board finds that the Veteran should be afforded a VA examination to determine whether or not his colon cancer was the result of in-service exposure ionizing radiation. Combee, supra. In addition, the Veteran has alternatively argued that his colon cancer was the result of exposure to Agent Orange while stationed in Vietnam. As the Veteran's service personnel records (SPRs) reflect that he served in Vietnam, his exposure to Agent Orange is presumed. 38 C.F.R. §§ 3.307, 3.309 (2012). While colon cancer is not a disease subject to presumptive service connection due to exposure to Agent Orange under 38 C.F.R. § 3.309(3), as noted above, the Veteran can still establish service connection on a direct basis. Id. Thus, on remand, the examiner should also provide an opinion as to whether the Veteran's colon cancer was the result of his in-service exposure to Agent Orange. Based on the foregoing, this matter should be remanded, and the Veteran should be provided with a VA examination in order to determine whether the Veteran's diagnosed colon cancer is the result of his military service, to include exposure to ionizing radiation in Japan and Agent Orange in Vietnam. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong of 38 C.F.R. § 3.159(c)(4)(I), which requires that the evidence of record 'indicate' that the claimed disability or symptoms may be associated with service, establishes a low threshold). (C) Issuance of a SSOC In May 2012, after the current appeal was certified to the Board in January 2011, the Board received additional evidence (i.e., information from the Air Force Technical Application Center (AFTAC) that is relevant to the Veteran's claim for service connection for colon cancer to include as secondary to exposure to ionizing radiation and Agent Orange without a waiver of initial RO consideration. Thus, for this reason, this issue must be remanded to the RO. See 38 C.F.R. § 20.1304 (2012). Accordingly, the case is REMANDED for the following action: 1. Via the Radiation Protection Division and USAF Radioisotope Committee Secretariat of the Office of the Surgeon General of the Air Force, contact the Nuclear Weapons Safety Branch of the Air Force Safety Center and request a revised radiation dose estimate for the Veteran during his assignment with the 56th Weather Recon Squadron at Yokota AB, Japan, with particular attention to exposure during the following years: August-September 1964 and January to April 1965. It should be explained that Secret Working Papers from AFTAC reflect that their original dose estimate was based on a figure of 11 flights for the period from May 20, 1965 to October 18, 1965. 2. After obtaining the requested revised radiation dose estimate, development should be completed pursuant to the provisions of 38 C.F.R. § 3.311 for the claim for service connection for colon cancer. 3. After any additional evidence has been obtained pursuant to directives 1 and 2, the RO should arrange for a VA examination of the Veteran by an appropriate specialist to determine whether he currently has colon cancer or residuals thereof that is/are related to his period of military service. The claims files must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Based on his/her review of the case, the examiner is specifically requested to offer an opinion as to: (a) Does the Veteran currently have any colon cancer or residuals thereof? If so, state the diagnosis or diagnoses. (b) If the examiner finds that the Veteran has colon cancer or residuals thereof, he or she should then provide a response to the following question: Is it least as likely as not (50 percent probability or greater) that the Veteran's current colon cancer or residuals thereof had its/their onset during his period of active military service, to include exposure to ionizing radiation in Korea and Agent Orange in Vietnam? In answering the requested opinion, the examiner is requested to comment on the Veteran's service and personnel records; March 2009 report, prepared by T. W. E., D. O; all dose estimates provided by the AFTAC; and, the Under Secretary of Health's January 2011 Advisory Opinion. The examiner is hereby informed that the Veteran's exposure to ionizing radiation and Agent Orange during military service is hereby presumed. A complete rationale must be provided for all opinions expressed. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Id. 4. To help avoid future remand, the RO/AMC must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the claims files are returned to the Board. See Stegall, supra. 5. Then, after completion of any other development indicated by the cord, readjudicate the claim entitlement to service connection for colon cancer, claimed as due to ionizing radiation and Agent Orange exposure. If any benefit sought on appeal remains denied, issue an appropriate SSOC that addresses all evidence received since issuance of a February 2011 Statement of the Case (SOC) and provide the Veteran and his attorney an opportunity to respond. 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). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), 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).