Citation Nr: 1544339 Decision Date: 10/16/15 Archive Date: 10/21/15 DOCKET NO. 12-15 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for cancer of the tonsil (claimed as throat cancer), to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision, by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran submitted the July 2010 Radiation Dose Assessment Questionnaire within a year of the June 2010 rating decision, and so it is considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2015). In November 2013, the Veteran testified at a Board video hearing over which the undersigned Veterans Law Judge presided, and the transcript of that hearing has been associated with the claims file. In November 2014, the Board denied the Veteran's claim of service connection for cancer of the tonsil (claimed as throat cancer), to include as due to ionizing radiation. The Veteran appealed the November 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2015, the Court granted the Joint Motion for Remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. The Board also notes that, in addition to the paper claims file, there is an electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents reveals that certain documents, including the November 2013 hearing transcript, VA treatment records, and the Joint Motion for Remand, are relevant to the issue on appeal. As such, these virtual files have been considered in the adjudication of the Veteran's claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the May 2015 JMR, the parties agreed that the Board erred in failing to ensure adequate compliance with VA's duty to assist in that the evidentiary record revealed, in a March 2010 statement, that the Veteran reported that he was responsible for "guarding and maintaining" nuclear warheads while he was stationed in Germany. It was noted that he specified: While doing this job I was responsible for keeping them in good condition. We painted, clean them off when they would leak and keep them in proper condition. While doing this we did not wear any type of radiation protection or had a Geiger counter around when we were working. The parties noted that the record also included the Veteran's DD-214 and his service personnel records. The parties observed that these records contained the dates of the Veteran's tour of duty in Germany, identified his unit while stationed there, and indicated his military occupation specialties during that time. The parties maintained, however, that the RO did not seek the Veteran's unit history records and morning reports to determine whether his job duties included close contact with nuclear weapons or any other information regarding his possible exposure to ionizing radiation. Thus, the parties agreed that VA failed to comply with the duty to assist. The parties also recognized that in a May 2012 response to a request from the RO, the U.S. Army Medical Command indicated: [i]f it is determined that your office requires a dose reconstruction (dose estimate), please resubmit your request indicating that fact. To conduct an accurate and complete dose reconstruction, we will require additional information from your office. This additional information should include: • Personnel records indicating exact dates and locations of assignments • A fully completed Radiation Exposure Questionnaire • Assigned military-occupational specialty codes • Any additional information which could help identify duties with, or around, radiation sources. The parties agreed, however, that it did not appear from a review of the record that this additional development was undertaken. Thus, the parties found that VA also failed to comply with the duty to assist in this regard. Therefore, the paries noted that to adequately comply with its duty to assist, VA should endeavor to obtain, or otherwise account for, the described evidence and information. Lastly, the parties claim that the undersigned "hearing officer" failed "to suggest that the Veteran obtain and submit (if called for) his unit history and morning reports, and that he could submit 'buddy' statements to substantiate his claim" and thus, the parties agreed that the "hearing officer" failed to adequately comply with "his" duties under Bryant v. Shinseki, 23 Vet. App. 488 (2010). Accordingly, the case is REMANDED for the following action: 1. In accordance with the May 2015 JMR, notify the Veteran that he may submit his unit history, morning reports, and buddy statements to substantiate his claim. 2. In accordance with the May 2015 JMR, undertake appropriate measures to obtain unit history records and morning reports for purposes of substantiating the Veteran's claim of exposure to ionizing radiation during service. All efforts to obtain these records must be documented in the claims file. 3. Thereafter, in accordance with the May 2015 JMR, submit a request to the U.S. Army Medical Command for a dose reconstruction (dose estimate), containing the requested information in the May 2012 letter: • Personnel records indicating exact dates and locations of assignments • A fully completed Radiation Exposure Questionnaire • Assigned military-occupational specialty codes • Any additional information which could help identify duties with, or around, radiation sources. 4. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the 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). (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ TANYA SMITH 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) (2015).