Citation Nr: 1624983 Decision Date: 06/21/16 Archive Date: 07/11/16 DOCKET NO. 10-22 849 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from April 1974 to April 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the Board at an August 2010 hearing conducted at the RO. A transcript of the hearing is of record. This case was previously before the Board in November 2012, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The appeal is again REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in order to ensure complete development of the Veteran's claim. The Veteran testified to his belief that he was exposed to a variety of hazardous chemicals at Aberdeen Proving Grounds, Maryland, in his military occupational specialty (MOS) as a Chemical Operations Assistant (54A10). The Veteran contends that the exposures to the chemicals he handled caused his prostate cancer, even if he did not handle Agent Orange specifically. The Veteran also testified that he recalled some exposure to radiation. The Veteran further testified that he was also exposed to unknown hazardous chemicals at another facility, Edgewood Arsenal, because his duties required him to pick up or drop off of supplies, including chemicals, and equipment, at that facility. The Veteran testified as to his belief that his in-service exposures to hazardous chemicals and radiation, at the two facilities, in combination, caused his prostate cancer. The Board's November 2012 Remand directed that the Veteran be offered an opportunity to provide additional details about his exposures to hazardous chemicals and to radiation. The Veteran has not responded. However, during the course of the Remand the Veteran has been found incompetent for VA purposes. This suggests that the Veteran's capacity to assist in the development of his claim is limited. For this reason, the Board finds that an additional attempt to obtain official information about his exposures to chemicals and/or radiation should be conducted. In particular, the Veteran testified that he "sometimes" was exposed to radiation and that he and others around him sometimes wore radiation badges. The Veteran's service treatment records and service personnel records are devoid of any reference to occupational exposure to ionizing radiation. However, an attempt should be made to address the Veteran's testimony, given the Veteran's diminished capacity to provide additional specific information. The service department should be asked to furnish available information as to whether individuals in the Veteran's MOS at Aberdeen Proving Grounds from July 1974 to February 1976 were monitored for exposure to ionizing radiation, and whether individuals in that MOS are currently monitored for radiation exposure at that facility. The facility should also be asked whether individuals in AIT programs or AIT specific to the Veteran's MOS were monitored for radiation exposure in July 1974 to August 1974 or are currently monitored. The service department should be asked whether personnel at Edgewood Arsenal during the relevant period, or individuals the Veteran would likely have worked with at either facility were monitored for exposure to ionizing radiation during the relevant time period (July 1974 to February 1976), or currently are monitored for such exposure. Currently, the sole evidence that the Veteran was exposed to ionizing radiation is the Veteran's recollection that he was exposed to radiation because he learned how to use a dosimetry badge and others around him wore radiation badges. These statements, together with any relevant evidence obtained during the course of this Remand, should be forwarded to the Under Secretary for Health, for preparation of a dose estimate, or to determinate if a dose estimate is possible. 38 C.F.R. § 3.311(a). If exposure to ionizing radiation is identified, the claim must then be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). The service department should also be asked to provide a job description for the Veteran's MOS, 54A10, at Aberdeen Proving Ground during the relevant period. If no job description is available, official training or procedure manuals or the like which would assist VA to determine what "chemicals" the Veteran handled and what he was tasked to do with those chemicals, at both Aberdeen Proving Ground and Edgewood Arsenal. If the facility and the service department are unable to locate information which responds to any question required for development of the claim, then JSRRC or other appropriate resource should be queried.. After the actions directed above are completed, and all available evidence as to the Veteran's exposures to chemicals and/or radiation has been gathered, medical opinion as to the likelihood that the Veteran's prostate cancer resulted from such exposures should be obtained. 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. Ask Aberdeen Proving Grounds, or its higher command, or the service department (U.S. Army) to search for records pertaining to duties assigned to MOS 54A10 at that facility from July 1974 to February 1976. Request a job description, training materials, or procedure manuals which set out the duties and responsibilities of MOS 54A10. Unit or facility records for the relevant period (1974-1976) which might show likely exposures to ionizing radiation or hazardous substances, whether specific to MOS 54A10 or at the facility, should be requested. The facility or service department should be asked whether individuals in MOS 54A10 were monitored for exposure to ionizing radiation, such as through dosimetry badges, during the relevant period (July 1974 to February 1976). The request should ask if the Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) was prepared for other servicemembers in MOS 54A10 during the relevant time period. The facility or service department should also be asked whether there is a current policy requiring monitoring of individuals in MOS 54A10 (or the most closely-related current MOS) for exposure to ionizing radiation or exposure to hazardous substances. 2. If the duties of a service member in MOS 54A10 at Aberdeen Proving Grounds, or records of the activities of the Veteran's unit, are not inconsistent with the Veteran's testimony that his duties required travel to Edgewood Arsenal, ask the Edgewood Arsenal or the service department (U.S. Army) for information as to the circumstances under which service members at Edgewood Arsenal or visitors to the facility were monitored for radiation exposure during the period from 1974 to 1976. Ask the Edgewood Arsenal whether Agent Orange herbicides were stored or used at that facility during the period from 1974 to 1976, and, if so, whether there are records which could determine the likelihood of the Veteran's exposure to that herbicide. Ask the Edgewood Arsenal whether visitors to that facility are known to have been exposed to hazardous materials or chemicals during the period from 1974 to 1976. 3. If Aberdeen Proving Grounds or Edgewood Arsenal are unable to locate the information requested in paragraphs #1 or #2 above, request that information from the Joint Services Records Research Center (JSRRC). 4. Following the above, forward the Veteran's hearing testimony about exposure to ionizing radiation and other pertinent documents to the VA Under Secretary for Health for a radiation dose estimate, if possible, in accordance with 38 C.F.R. § 3.311(a)(2)(iii) (2015), and then to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c) (2015), if appropriate. 5. After completing development as necessary to address the Veteran's contention that he was exposed to ionizing radiation and hazardous substances, request medical opinion as to the likelihood that exposure to hazardous chemicals or to a combination of hazardous chemicals and radiation in service caused or contributed to the Veteran's development of prostate cancer diagnosed in 2005 or after. The reviewer should discuss the Veteran's lay statements and hearing testimony in determining whether it is at least as likely as not (a 50% or greater likelihood) that prostate cancer diagnosed in about 2005 is etiologically related to the Veteran's service from 1974 to 1976. 6. This is a complex Remand. The AOJ should review the development conducted to determine whether it is sufficient to satisfy the duty to assist a Veteran with limited capacity to assist in the development of his claim. Then, when the directed development has been completed, the AOJ should readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ TRESA M. SCHLECHT 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) (2015).