Citation Nr: 1510240 Decision Date: 03/11/15 Archive Date: 03/24/15 DOCKET NO. 04-03 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant is represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1952 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND The Appellant seeks dependency and indemnity compensation benefits as the surviving spouse of the Veteran, who died from small cell carcinoma in January 2002. The Appellant contends that the Veteran's small cell carcinoma was caused by exposure to ionizing radiation and/or chemicals while working as a missile guidance technician during service. In July 2009, the Board remanded the Appellant's claim for further development. Specifically, the Board directed the RO to: (1) obtain medical records from the Veteran's primary care physician (PCP) in Apple Valley, California; (2) provide the Appellant with proper notice in accordance with Hupp v. Nicholson, 21 Vet. App. 342 (2007); (3) contact the Air Force Medical Operations Agency (AFMOA) and request a reconstructed radiation dose based upon the Veteran's 15 years as a missile guidance technician, and return the claims file to the compensation and pension service for further review pursuant to 38 C.F.R. § 3.311; and (4) obtain a medical opinion as to whether the Veteran's cause of death was related to the Veteran's in-service work with missiles, including exposure to chemicals in missiles. While in remand status, the RO requested information regarding the Veteran's possible exposure to ionizing radiation. In a May 2014 memorandum, the Headquarters Air Force Safety Center (AFSEC) indicated that there were no dosimetry records for the Veteran. However, the AFSEC performed a dose reconstruction based on the Veteran's job duties, the types of weapons potentially maintained at his duty locations, and periodic evaluations of radiation exposure on individuals operating nuclear weapons. The AFSEC indicated that the Veteran's only duty assignment with the potential for exposure to ionizing radiation involved maintenance on an AIM-26 at Wheelus Air Base from September 1963 to September 1964. The AFSEC conservatively estimated that the Veteran received less than 300 millirem effective dose equivalent from his duties at Wheelus Air Base, less than 100 millirem in a year, and less than 1.9 rem of whole-body, deep-dose equivalent. A May 2014 letter from the Air Force Medical Support Agency (AFMSA) stated: AFSEC performed a dose reconstruction and conservatively estimated the [V]eteran received a cumulative, effective dose equivalent of less than 0.3 rem. . . . The average annual effective dose equivalent from natural radiation sources to persons world-wide can be as high as 0.6 rem. We concur with AFSEC recommendations. Although the AFSEC submitted a dose reconstruction estimate, there are no opinions of record as to whether the Veteran's exposure to ionizing radiation caused his small cell carcinoma. When a "radiogenic disease" listed in 38 C.F.R. § 3.311(b)(2) first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311(a)(1) (2014). Specifically, VA must request radiation dose information and then refer the claim to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(a)(2), (b)(1). When a claim is forwarded for review pursuant to paragraph 38 C.F.R. § 3.311(b)(1), the Under Secretary for Benefits shall consider the claim with reference to the factors specified in paragraph 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary for Health. In this case, the evidence of record contains a final diagnosis of small cell carcinoma with liver metastases and bone metastases. The Veteran's PCP opined that the metastatic tumor biopsied from the Veteran's liver was consistent with primary lung cancer. Both liver cancer and lung cancer are "radiogenic diseases." See 38 C.F.R. § 3.311(b)(2). Thus, after receiving the dose reconstruction from the AFSEC, the Veteran's claim should have been referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). As the evidence of record does not contain an opinion as to whether the Veteran's small cell carcinoma was caused by the estimated exposure to ionizing radiation, the Board is without sufficient information to adjudicate the claim. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). Thus, a remand is necessary to obtain such an opinion from either the Under Secretary for Health or an appropriate VA medical professional. In December 2014, the RO obtained an opinion from a VA examiner regarding the cause of the Veteran's death. After reviewing the evidence of record, the examiner was unable to "opine that the [V]eteran's death was due to small cell carcinoma due to radiation exposure during his military service." In support of this, the examiner provided the following rationale: The [claims file] contains service treatment records while in service and medical records from [May] 2001 [through January] 2002. There is a large gap of medical information missing form [February] 1976 [through May] 2001. [The] Veteran's occupation after his military career is unknown. [The] Veteran's smoking history between this time is also unknown. [The] Veteran was noted to have smoked back in the 1970's. . . . [The] Veteran has a primary family member, a brother, who died of lung cancer. So [the] Veteran has risk factors of having smoked for ? years and a genetic disposition to lung cancer (brother having lung cancer) in addition to an unknown amount of radiation exposure during his time as a missile technician. Who knows if he was exposed to any other environmental risk factors in the occupation he pursued after his military career or lived in an old house [with] asbestos. There are too many risk factors and unknown factors to give an opinion [regarding the] cause of squamous cell carcinoma without resorting to mere speculation. The December 2014 VA examiner's opinion is inadequate for several reasons. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided). First, the July 2009 Board remand instructed the RO to obtain a medical opinion as to whether the Veteran's cause of death was related to the Veteran's in-service work with missiles, including exposure to chemicals in missiles. The December 2014 VA examiner only addressed exposure to radiation and failed to address exposure to chemicals. Because substantial compliance with the terms of the Board's July 2009 remand was not attained, a remand is required for another effort to comply with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Second, the VA examiner was unable to provide the requested opinion, in part, because the Veteran was exposed to "an unknown amount of radiation exposure during his time as a missile technician." However, the evidence of record contains an estimated dose of ionizing radiation exposure. Therefore, the Board finds that a remand is necessary in order to obtain a supplemental opinion that addresses the May 2014 dose reconstruction estimate. Third, the VA examiner was unable to provide the requested opinion because "[t]here are too many risk factors and unknown factors to give an opinion [regarding the] cause of squamous cell carcinoma without resorting to mere speculation." However, the Veteran had small cell carcinoma, not squamous cell carcinoma. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on an inaccurate factual premise are not probative). Thus, a remand is necessary in order to obtain a supplemental opinion that addresses the correct diagnosis. Fourth, the VA examiner was unable to provide the requested opinion, in part, because "[the] Veteran's smoking history between this time is also unknown, [and the] Veteran was noted to have smoked back in the 1970's." The examiner included in the examination report an article entitled "Cigarette Smoking and Other Risk Factors for Lung Cancer." The article indicated that exposure to cigarette smoke was the primary cause of lung cancer in the United States. The article also indicated that "[c]ase-control studies show that former smokers who had been abstinent for more than 15 years had an 80 to 90 percent reduction in risk of lung cancer compared to current smokers." The examiner noted that the evidence of record contained a February 1976 VA examination report indicating that the Veteran stopped smoking a year earlier. Additionally, the Veteran's January 2002 private treatment records indicated that the Veteran did not smoke. Thus, the Board finds that a remand is necessary in order to obtain a supplemental opinion that addresses this evidence. See Reonal, 5 Vet. App. at 460-61. Finally, the examiner was unable to provide the requested opinion because it was unclear whether the Veteran was exposed to certain environmental and occupational risk factors for lung cancer, such as cigarette smoke and asbestos. However, the Veteran's treatment records never identified the lungs as the primary origin of the Veteran's small cell carcinoma. The evidence of record indicates that the Veteran's PCP referred the Veteran to oncology after a November 2001 abdominal scan was suggestive of metastatic disease to the liver. There is no evidence indicating that the Veteran's PCP participated in the Veteran's care after the referral to oncology. A January 2002 private treatment record indicates that the Veteran reported lower abdominal pain since September 2001. The record shows that the Veteran had a family history of one brother with lung cancer, and the Veteran did not smoke or drink. The assessment was metastatic disease to the liver with very high carcinoembryonic antigen, ascites, and pedal edema. A January 2002 private treatment record indicates that the impression was "hepatic metastatic disease with unknown primary" and benign prostatic hyperplasia, asymptomatic. Another assessment from January 2002 was "metastatic carcinoma into the liver and bones." The treatment provider noted that the preliminary biopsy report revealed a small cell carcinoma, and that "[t]he possibilities could be pancreatic carcinoma, small cell lung carcinoma or small cell prostate carcinoma." A January 2002 discharge summary provided final diagnoses of small cell cancer with liver metastases and bone metastases, ascites, renal failure, hypertension, and weakness. The Veteran was discharged with hospice care, and his prognosis was "very poor." A January 2002 pathology report identified a mass biopsied from the Veteran's liver as small cell carcinoma. In a June 2014 letter, the Veteran's PCP summarized the Veteran's oncology treatment records. The Veteran's PCP indicated that a liver biopsy showed a metastatic tumor consistent with primary lung cancer and stated that the diagnosis was primary lung cancer with generalized metastasis. In concluding that the Veteran's cause of death was lung cancer, the VA examiner quoted the June 2014 letter from the Veteran's PCP. However, as noted above, the Veteran's treatment records did not identify the lungs as the primary origin of the Veteran's small cell carcinoma. Because the December 2014 examination report only addresses risk factors for lung cancer, the Board finds that a remand is necessary in order to obtain a supplemental opinion explaining why the examiner believes the primary origin of the Veteran's small cell carcinoma was the lungs. In doing so, the examiner must address all of the medical findings of record, and not just the June 2014 summary submitted by the Veteran's PCP. Accordingly, the case is remanded for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO must refer the Veteran's claims file to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). 2. The evidence of record must be reviewed by the December 2014 VA examiner in order to obtain a supplemental opinion. If the December 2014 VA examiner is not available, the evidence of record must be provided to another appropriate examiner. The examiner must review all pertinent records associated with the claims file, including the May 2014 dose reconstruction estimate and any opinions submitted by the Under Secretary for Health. After reviewing the evidence of record, the examiner must provide opinions as to (a) the primary origin of the Veteran's small cell carcinoma, (b) whether the Veteran's small cell carcinoma was due to in-service exposure to ionizing radiation, and (c) whether the Veteran's small cell carcinoma was due to in-service exposure to chemicals in missiles. In doing so, the examiner must specifically address the May 2014 ionizing radiation exposure estimate and all of the findings and diagnoses in the Veteran's private treatment records. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether any further information or testing is necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 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 in the paragraphs above, the claim must be readjudicated, to include all the relevant evidence submitted since November 2008 supplemental statement of the case. If the claim remains denied, a supplemental statement of the case must be provided to the Appellant and her representative. After the Appellant has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Appellant until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).