Citation Nr: 1511541 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 09-31 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for thyroid cancer, to include as due to in-service radiation exposure. 2. Entitlement to service connection for colon cancer, to include as due to in-service radiation exposure. 3. Entitlement to service connection for heart disability, claimed as aortic valve failure, status post replacement, to include as due to in-service radiation exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to February 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction over the case was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran testified at a hearing before a Decision Review Officer in March 2010. The Veteran and his wife testified at a hearing at the RO before the undersigned Veterans Law Judge in January 2012. A transcript of each proceeding is of record. When this case was before the Board in May 2012, it was decided in part and remanded in part. REMAND As the Board noted in its May 2012 remand, the Veteran's service personnel records indicate he served as the unit Armorer and Physical Security Noncommissioned Officer. The Veteran submitted Army records dated in August 1976 that indicate the 3rd Infantry Unit in Wurzburg, Germany, was required to check sights found defective and rifles found contaminated. It was noted that commanders were to determine if the advantages inherent in the sight were sufficient to warrant its continued use in light of the radiological contamination problems. Another Army record dated in December 1980 also notes that sights utilizing Promethium (PM147) caused many problems when they broke and contaminated the weapons, arms racks, and arms rooms. The Veteran has also submitted military research literature indicating that both PM147 and Tritium H3 were used in weapons sights, and that PM147 may cause excess internal dosing through ingestion, whereas excess dosing from Tritium H3 occurs through its ready absorption in the lungs and skin. See Richard Comer & John Knapton, Radiological Hazards of Tritium and Promethium-147 Activated Luminous Devices, in Ballistic Research Laboratory (BRL) Memorandum Report 1934 (U.S. Army Aberdeen Research and Development Center, Sep. 1968). In a January 2013 statement, the Veteran alleged that broken weapon sights that he replaced exposed him to both PM147 and Tritium H3. Both PM 147 and Tritium H3 are radiation-emitting atoms or molecules, and, therefore, are classified as ionizing radiating substances. Special development is warranted under 38 C.F.R. § 3.311 if the claim involves a radiogenic disease listed under 38 C.F.R. § 3.311(b)(2)(i)-(xxiv), and the disease manifested during certain specified periods as defined under 38 C.F.R. § 3.311(b)(5). Thyroid and colon cancers are listed as radiogenic diseases, and each cancer manifested more than 5 years after service, satisfying 38 C.F.R. § 3.311(b)(5). The development provisions of § 3.311 also apply to any other disease that may be induced by exposure to ionizing radiation. A June 2009 private medical statement indicates that the Veteran's in-service radiation exposure possibly resulted in damage to his heart. Therefore, the development provisions of § 3.311 also apply to the Veteran's heart disability. A June 1981 service treatment record indicates that the Veteran suffered acute changes, including hair loss on the head and extremities as well as severe headaches and severe tunnel vision in June 1981 following exposure to rifle sight radiation for the interval from 1979 to 1981. A radiation dose estimate was sought unsuccessfully by treating medical personnel from relevant military authorities at that time. Further development to determine the radiation dose is required under 38 C.F.R. § 3.311(a)(2)(iii). The Board in its May 2012 remand ordered development to obtain a radiation dose estimate from the Under Secretary for Health. Unfortunately, a November 2012 statement obtained from the Under Secretary for Health does not provide the radiation dose estimate required by the regulation. Therefore, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should prepare a summary of the claimed circumstances of the Veteran's exposure to ionizing radiation during service and then forward the case to the Under Secretary for Health for preparation of an estimate of the Veteran's exposure to ionizing radiation in service, to include internal dosing, as a result of absorption of substances through skin or lungs, or through ingestion, as asserted by the Veteran and as discussed in the Ballistic Research Laboratory Report, Radiological Hazards of Tritium and Promethium-147 Activated Luminous Devices. Richard Comer & John Knapton, Radiological Hazards of Tritium and Promethium-147 Activated Luminous Devices, in Ballistic Research Laboratory (BRL) Memorandum Report 1934 (U.S. Army Aberdeen Research and Development Center, Sep. 1968). The RO or the AMC must ensure that a dose estimate is obtained with due consideration of the duration and circumstances of exposure based on the Veteran's report of exposure to broken gun sights, and his work in a radiation-contaminated armory from 1979 to 1981, as documented in the June 1981 service treatment record. 2. After receipt of the dose estimate provided by the Under Secretary for Health, the RO or the AMC should undertake all other development required under38 C.F.R. § 3.311. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issues of entitlement to service connection for thyroid cancer, colon cancer, and heart disability. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be provided to the Veteran and his representative and they should be afforded the requisite period of time to respond. Then, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant unless he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This case 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 2014). _________________________________________________ Shane A. Durkin 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).