Citation Nr: 1620344 Decision Date: 05/18/16 Archive Date: 05/27/16 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 K. M. Georgiev, Associate 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. This matter was remanded in August 2014 and is again before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, an additional remand is required in this case. In the August 2014 Board remand, the Board ordered additional development as to the appellant's contention that 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. As the remand noted, 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 (2015). As such, the Board found that an attempt was necessary 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 found that additional development in the form of a dose estimate is required. The AOJ has since conducted inquiries through the United States Department of Energy, National Nuclear Security Administration, and the United States Army Dosimetry Center. The Veteran's service personnel records were also associated with the claims file. No records supporting exposure to ionizing radiation were located, although the NSA response noted that the agency's dosimetry records are limited to 1945 to present. However, the AOJ did not 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. The appellant has submitted statements and testimony regarding radiation exposure and this evidence is relevant determining whether exposure occurred. As the entirety of the Board's remand instructions has not been completed, a remand is necessary. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance." Id. Further, in a December 2015 statement, the appellant requests that dental x-rays conducted at Love Dental Clinic, Fort Benning Georgia, show exposure to significant radiation and she requests that these records be requested and associated with the claims file. A remand is also required to ensure all records requested by the appellant are obtained to the extent possible. Accordingly, the case is REMANDED for the following action: 1. Associate all VA treatment records and request permission from the appellant to associate any outstanding private treatment records or ask that she submit the records herself. Particular attention is directed to dental x-rays conducted at Love Dental Clinic, Fort Benning Georgia. All attempts to procure records should be documented in the file. If any records identified cannot be obtained, a notation to that effect should be inserted in the file. The appellant is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 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 2014). _________________________________________________ MICHAEL LANE 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).