Citation Nr: 1521066 Decision Date: 05/18/15 Archive Date: 05/26/15 DOCKET NO. 13-25 150A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for left-sided acoustic neuroma. 2. Entitlement to service connection for prostate cancer. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a disability manifested by balancing problems. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.C. Chapman INTRODUCTION The Veteran served on active duty from June 1963 to June 1966, and had subsequent service in the Army National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, a videoconference hearing was held before the undersigned. A transcript is associated with the record. The Board notes that VA has implemented specific procedures for the processing of radiation claims. See VA Fast Letter 06-20; see also VA Adjudication Procedures Manual, M21-1MR IV.ii.1.B.5.a. All claims for service connection based on radiation exposure are to be centralized at the Jackson RO. Although the original RO (in this case, Philadelphia), retains jurisdiction on the appeal, the record should be transferred so that the Jackson RO can develop the radiation claim and then return the file for completion of the appeal. Id. The appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND The Veteran contends that he was exposed to radiation during service in his duties as a radar technician/Hercules Missile Crewman while stationed at Fort Bliss, Texas and a Nike site in Cleveland, Ohio. He contends that his duties required him to be directly involved with radar 336 hours a month. Tr. at 4. In cases involving exposure to ionizing radiation, VA has additional specific duties regarding the assistance due to claimants. Specifically, 38 C.F.R. § 3.311 states that 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 of time, and it is contended that a 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. 38 C.F.R. § 3.311(a)(1) (2014). VA's duty to assist includes requesting any available records concerning the Veteran's exposure to radiation and forwarding all such records to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Tumors of the brain and prostate cancer are radiogenic diseases. The record includes a May 2010 statement from a private physician indicating that the Veteran was exposed to cancer-causing radiation while building a missile defense system and that many have developed cancer as a result. He further stated that even though acoustic neuromas are not cancerous tumors, there are reports that they may be related to ionizing radiation. He cited an article suggesting this possibility and concluded that there is thus a possibility that the Veteran's ionizing radiation exposure during service could have led to his acoustic neuroma. A response to a February 2012 request through the Personnel Information Exchange System (PIES) for his DD 1141 and records of exposure to radiation indicated that no such information was of record. Additionally, a December 2012 response from the Army Dosimetry Center indicated that they were unable to locate any records of the Veteran's exposure to ionizing radiation. This information was not provided to the Under Secretary for Health for a dose estimate. Hence, on remand, the Veteran's case must be referred to the Under Secretary for Health for a dose estimate pursuant to 38 C.F.R. § 3.311(a)(2)(iii), taking into account the Veteran's statements, the information cited above, his service treatment records, and his personnel records. If it is determined that the Veteran may have been exposed to ionizing radiation, then the claim should be referred for appropriate review by the Under Secretary for Benefits under 38 C.F.R. § 3.311(c). Moreover, November 2014 email correspondence from a Ph.D. in nuclear physics suggests that the Veteran's acoustic neuroma may be due to his exposure to non-ionizing radiation (i.e., microwave exposure). Non-ionizing exposure from radar equipment is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309 and 3.311, which address exposure to ionizing radiation. Thus, this theory of entitlement should also be developed, to include determining the Veteran's amount of exposure (if any) to non-ionizing radiation during service, and by obtaining a medical opinion to resolve the question of etiology. The Veteran also contends that his bilateral hearing loss, tinnitus, and disability manifested by balancing problems are etiologically related to his acoustic neuroma. Therefore, these claims are inextricably intertwined, and resolution of these claims is dependent upon the adjudication of the Veteran's claim of service connection for a left-sided acoustic neuroma. Accordingly, the case is REMANDED for the following actions: 1. Associate with the record all updated outstanding records of VA evaluations and treatment the Veteran has received to the present regarding the claims on appeal. 2. After completion of directive #1, ensure development of the claims for service connection for left-sided acoustic neuroma and prostate cancer in accordance with 38 C.F.R. § 3.311(a)(2)(iii) and consistent with VA Adjudication Manual, M21-1MR, Part IV.ii.1.C. This should include obtaining a dose estimate from the Under Secretary for Health and then, if appropriate, forwarding the dose estimate to the Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c). 3. After completion of directive #1, determine the Veteran's level of exposure, if any, to non-ionizing (microwave) radiation during his service as a radar technician, and prepare a memorandum of record describing this information. 4. After completion of directives #1 & #3, and if and only if the Veteran is shown to have been exposed to non-ionizing radiation, obtain a VA opinion with an appropriate provider to determine whether the Veteran's left-sided acoustic neuroma is at least as likely as not (a 50% probability or greater) related to his level of exposure to non-ionizing (microwave) radiation. A detailed rationale should be provided. 5. After completion of directives #1-4, arrange for any further development deemed necessary, to include development regarding the Veteran's claims for service connection for bilateral hearing loss, tinnitus, and/or a disability manifested by balancing problems. 6. After completion of directives #1-5, review the record and readjudicate these claims. If any remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Nathaniel J. Doan Acting 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).