Citation Nr: 1420187 Decision Date: 05/06/14 Archive Date: 05/16/14 DOCKET NO. 12-34 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for primary lateral sclerosis (PLS). 2. Entitlement to service connection for a psychiatric disorder (claimed as depression), to include as secondary to PLS. 3. Entitlement to service connection for transitional cell carcinoma of the bladder post left nephrectomy, including as a result of exposure to asbestos. REPRESENTATION Appellant represented by: Michael T. Sullivan, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had active military service from October 1970 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, NY. The Veteran appeared and testified at a Board hearing held at the RO before the undersigned Veterans Law Judge in May 2013. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The issue of entitlement to service connection for transitional cell carcinoma of the bladder post left nephrectomy is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. PLS is more likely than not a subset or variant of amyotrophic lateral sclerosis (ALS) for the purposes of VA compensation. 2. The Veteran is diagnosed to have a mood disorder with depressive features due to his PLS. CONCLUSIONS OF LAW 1. Presumptive service connection for PLS is warranted. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 20); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.318 (2013). 2. The Veteran's mood disorder with depressive features is proximately caused or aggravated by his PLS. 38 U.S.C.A. §§ 1110, 1112, 1116, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for PLS and a mood disorder with depression as secondary thereto, which represents a complete grant of these benefits sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. PLS The Veteran contends that his PLS is the same as or a type of ALS and, therefore, service connection should be granted based upon the presumption of service connection for ALS set forth in 38 C.F.R. § 3.318. In the alternative, he argues that he had leg cramps in service for which he was treated and which continued after service until his diagnosis of PLS in 2005 that were the onset of his PLS. Effective September 23, 2008, VA enacted 38 C.F.R. § 3.318, which established a presumption of service connection for amyotrophic lateral sclerosis (ALS) for any Veteran who develops ALS at any time after separation from service, provided that (1) there is no affirmative evidence that it was not incurred during or aggravated by service; (2) there was no affirmative evidence that it was due to the Veteran's own willful misconduct; and (3) the Veteran had active, continuous service of 90 days or more. See 73 Fed. Reg. 54691-01 (effective Sept. 23, 2008). In support of his claim, the Veteran has submitted multiple articles (i.e., treatise evidence) that present the proposition that PLS is a variant, classification or subset of ALS. These articles acknowledge that there is a difference of opinion as to whether PLS is a distinct motor neuron disease or whether it is a variant or classification of ALS or whether PLS may progress to ALS (in that it may spread to also affect the lower motor neurons rather than just the upper motor neurons). In contrast, the VA examiner who conducted an April 2012 VA neurology examination, stated that "PLS and ALS are two distinct diagnoses of motor neuron disease." She failed, however, to provide any rationale or citation to supporting medical or scientific sources, which renders her statement insufficient given that her statement is inconsistent with the favorable treatise evidence submitted by the Veteran. In order to clarify whether the Veteran's PLS is a variant, classification or form of ALS, the Board requested a VHA medical expert opinion from a neurologist. In a report dated in March 2014, a neurologist from the VA Medical Center in West Palm Beach, Florida opined, after an extensive review and thorough discussion of the medical literature on the subject, that there is clearly a reasonable degree of medical certainty that it is more likely that not that the Veteran's PLS is a subset or variant of ALS for the purposes of VA compensation. Consequently, the Board finds that service connection for the Veteran's PLS is warranted based upon the presumption of service connection for ALS set forth in 38 C.F.R. § 3.318. Since the Board grants service connection for the Veteran's PLS on a presumptive basis, it need not address the Veteran's contention relating to service connection on a direct basis. Psychiatric Disorder The Veteran claims he has depression that is due to his PLS. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). The Veteran's VA treatment records show that he has a diagnosis of mood disorder with depressive features due to PLS. Consequently, the evidence demonstrates that the Veteran's has a psychiatric disorder that is proximately due to or the result of his PLS, for which service connection is granted in this decision. Service connection on a secondary basis for a mood disorder with depressive features due to PLS is, therefore, warranted. ORDER Entitlement to service connection for PLS on a presumptive basis pursuant to 38 C.F.R. § 3.318 is granted. Entitlement to service connection for a mood disorder with depressive features due to PLS is granted. REMAND The Board finds that remand of the Veteran's claim for service connection for transitional cell carcinoma of the bladder post left nephrectomy is required for additional development. The Veteran initially claimed his transitional cell carcinoma of the bladder was due to exposure to asbestos. However, at the May 2013 Board hearing, the Veteran stated that he never received the development letter from the RO requesting that he provide documentation to support asbestos exposure. He first learned that the RO was looking at asbestos exposure as the cause of his bladder cancer in the Statement of the Case. He stated he was curious, so he looked online and found out that Minot Air Force Base, where he was stationed, had asbestos in the concrete from when they constructed it. Subsequent to the hearing, the Veteran submitted an internet article entitled "North Dakota Asbestos Areas" from http://www.asbestosnews.com/ asbestos-areas/north-dakota that states that "North Dakota is also home to a couple of Air Force Bases that probably have asbestos in their walls and their power plants. Then there are the missile silos that are scattered across the North Dakota landscape - any installation of that magnitude during the era when they were built is going to have some asbestos incorporated into some of its components." This article also lists asbestos jobsites in North Dakota, including Minuteman missile sites. Consequently, the Board finds this evidence is sufficient to require additional development with the U.S. Air Force for any information relating to the use of asbestos at the Minot Air Force Base or the Minuteman missile silos in North Dakota. In addition, at the hearing, the Veteran for the first time raised the allegation that his transitional cell carcinoma of the bladder is due to ionizing radiation. He testified that, when stationed at Minot Air Force Base, he was assigned to the Minuteman three missile systems. He further stated that, during his three and a half years there, he was in and out of the missile silos. He testified that they did wear badges when they went in and that sometimes the badges turned colors. The Veteran further testified that he was sent on temporary duty for 30 days to an atomic energy site in Nevada where he participated in an experiment where they buried a cable on a dry lake bed and then set off a 100 megaton bomb and thereafter evaluated the effect on the cable. He stated he believes that this explosion and all the dust particles that were generated from the dry lake bed could have exposed him to radiation. The Board believes the Veteran is referring the Nevada Test Site (now known as the Nevada National Security Site) and hereafter will refer to it as such. After the hearing, the Veteran submitted a copy of an Ionizing Radiation Registry Examination conducted by VA in March 2011 at which he reported being in Nevada in 1972 for the above experiment and also was in and out of missile silos. The physician who conducted the examination stated in her assessment that the Veteran's transitional cell carcinoma of the bladder may be related to his history of atomic silo exposure. He also submitted copies of letters from the VA Medical Center showing their attempts to verify his radiation exposure in service. Finally, the Board notes that there is no evidence, nor does the Veteran contend, that he participated in a radiation-risk activity as set forth in 38 C.F.R. § 3.309(d)(3)(ii). Thus, his claim should be developed and adjudicated under the procedures set forth in 38 C.F.R. § 3.311 for other claims based on exposure to ionizing radiation. Consequently, remand is warranted for additional development of the Veteran's claimed exposure to both asbestos and ionizing radiation, in addition to the AOJ considering in the first instance the Veteran's claim that his transitional cell carcinoma of the bladder is due to exposure to ionizing radiation. Since remand is warranted, additional notice should be provided to the Veteran on his claim for service connection for transitional cell carcinoma of the bladder post left nephrectomy advising him how to establish entitlement to his claim based upon exposure to both asbestos and ionizing radiation. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with notice that is compliant with the current notice requirements for service connection for his transitional cell carcinoma of the bladder post left nephrectomy based upon exposure to asbestos and ionizing radiation under 38 C.F.R. § 3.311. Advise the Veteran that, for purposes of confirming his temporary duty at the Nevada Test Site, he needs to provide VA with a more definite timeframe of when he was there. If he cannot give the specific dates that he was at the Nevada Test Site, he should at least provide the year and a two month period within that year that he was there. 2. Contact the National Personnel Records Center (NPRC), or any other appropriate agency, and request it provide a complete copy of the Veteran's service personnel records. 3. If the service personnel records do not demonstrate that the Veteran was sent on temporary duty to the Nevada Test Site, contact the following agencies seeking documentation to corroborate the Veteran's report. If the Veteran does not provide the specific month and year of such temporary duty, then at least a search should be requested for 1972, the year the Veteran identified at the March 2011 Ionizing Radiation Registry Examination. A negative reply should be requested from each agency contacted if the requested records are not available. a) Request the Department of the Air Force conduct a search for any Orders assigning the Veteran to temporary duty at the Nevada Test Site. b) Request that the Defense Finance and Accounting System (DFAS) conduct a search of the Veteran's pay records for any documentation that he was assigned to temporary duty, to include, if shown, at the Nevada Test Site. c) Ask the U.S. Army and Joint Services Records Research Center (JSRRC) if it has access to records from the Nevada Test Site that shows names of service members who participated in operations thereat and, if so, that it conduct a search for the Veteran. d) Request that the United Stated Department of Energy and/or the Nuclear Regulatory Commission conduct a search of the records from the Nevada Test Site for documentation of service personnel who participated in experiments at the site. 4. Thereafter, develop the Veteran's claim of exposure to ionizing radiation as set forth in 38 C.F.R. § 3.311, to include development of any necessary medical examinations/opinions and/or referral to the Under Secretary for Benefits, if appropriate. 5. If the above actions do not resolve the claim in favor of the Veteran, then contact the Department of the Air Force, or any other appropriate agency, and request it provide any information available regarding asbestos at Minot Air Force Base and/or in Minuteman missile silos in Minot, North Dakota. A negative reply should be requested if the requested information is not available. 6. Thereafter, schedule the Veteran for a VA genitourinary examination. The claims file must be provided to and reviewed by the examiner. The examiner should be advised of any corroborated asbestos use at the Minot Air Force Base and/or in Minuteman missile silos. After reviewing the claims file and examining the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's transitional cell carcinoma of the bladder and/or kidney is related to any corroborated exposure to asbestos incurred during service at the Minot Air Force Base and/or in Minuteman missile silos. A complete explanation of the reasoning behind the opinion provided should be given and expressed in a legible report. 7. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs