Citation Nr: 1437372 Decision Date: 08/21/14 Archive Date: 08/27/14 DOCKET NO. 12-03 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Counsel INTRODUCTION The Veteran has verified military service from November 1972 to December 1975 and June 2003 to July 2004. He died in August 2009. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant testified before the undersigned Veterans Law Judge at the RO in February 2014. A transcript is included in the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant contends service connection is warranted for the cause of the Veteran's death because he had in-service exposure to ionizing radiation while on active duty. The RO attempted to obtain all available service treatment records, but a formal finding dated in October 2010 indicates that the records are unavailable. It is unclear, however, if service personnel records may be available. The appellant submitted portions of the Veteran's service records to include a copy of special orders dated in April 1974 showing the Veteran underwent a permanent change of station to an Army Nike-Hercules battery, during which she asserts he routinely handled nuclear warheads for that weapons system. The Veteran's death certificate lists the immediate cause of death as cardiopulmonary arrest due to brain death as a consequence of strokes. Records indicate that just before death, the Veteran was diagnosed with right medial sphenoid meningioma. A tumor of the brain is considered a radiogenic diseases under 38 C.F.R. § 3.311 (2013). A review of the record reveals that an attempt has not been made to determine if the Veteran's duties involved exposure to ionizing radiation, and, if so, if a dose assessment could be obtained. Because the appellant claims, in part, that the Veteran's brain tumor was the result of his radiation exposure, the Board finds that additional development in the form of a dose estimate is required. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center and all other appropriate records repositories, and request copies of the Veteran's service personnel records, to include any DD Form 1141, Record of Occupational Exposure to Ionizing Radiation. All efforts to obtain such records should be documented in the claims folder. If the AOJ cannot locate such records, the AOJ must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the appellant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The appellant must then be given an opportunity to respond. 2. Thereafter forward the Veteran's records concerning his radiation exposure, including any service records, statements and testimony regarding radiation exposure, and any other information obtained from the above request to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. If it is determined that no exposure occurred, this should be so stated. If exposure is found to have occurred, but a specific estimate cannot be made, a range of possible doses should be provided. If more information from the appellant is required regarding specifics of the Veteran's alleged exposure, she should be contacted and asked to provide the information. 3. If the above-requested development results in a positive dose estimate, refer the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). 4. Thereafter, the AOJ must readjudicate the issue on appeal. If the benefit sought remains denied, provide the appellant with a supplemental statement of the case and an appropriate period of time for response before this case is returned to the Board. 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). _________________________________________________ MICHAEL LANE 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).