Citation Nr: 1751334 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-30 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for multiple sclerosis as a result of exposure to ionizing radiation. ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Army from September 1980 to August 1985. The matter comes before the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2014). Where a veteran served ninety days or more of active service, and multiple sclerosis becomes manifest to a degree of 10 percent or more within seven years after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). Finally, service connection may also be established if a radiation-exposed veteran develops a "radiogenic disease" - one that may be induced by ionizing radiation. A radiogenic disease can be either one of the diseases listed at 38 C.F.R. § 3.311 (2017) or an unlisted disease, if competent scientific or medical evidence establishes that the claimed condition is a radiogenic disease and if VA's Under Secretary for Benefits determines that a relationship, in fact, exists between the disease and the veteran's radiation exposure in service. In this case, the record does not contain sufficient evidence to allow the Board to make a fully informed decision on the Veteran's appeal. Medical records show that the Veteran was diagnosed with multiple sclerosis in 2011. See May 2011 VA medical record. Moreover, the Veteran claims that this multiple sclerosis was caused by his serving in the 72nd Field Artillery Brigade, during which he claims he was exposed to radiation arising out of nuclear heads. See October 2012 VA Form 9. A review of his August 2011 VA Radiation Risk Activity Information Sheet shows that he responded to almost all of the questions with: "Do Not Remember"; however, he later states that he did so because he did not know the specifics as to when and where he was exposed to ionizing radiation, as the project he was involved in was top secret and he was only given information on a need to know basis. See May 2012 Correspondence. In his May 2012 correspondence, he specifically states: I would like to point out and make very clear during this process that my not know[ing] as to where and when I was exposed to ionizing radiation and that military records does not show such involvement is solely [the] product of Standard Operational procedures as to [a] Need to Know Basis. I did not need to know where and when radioactive equipment was, were, are placed during my service and time before my tour of duty in Wertheim, Germany. I held a Top Secret Clearance and was part of the Nuclear Release Authentication Team, but I knew only what I need[ed] to know. May 2012 Veteran's Correspondence. To this end, he also submitted documents of unspecified origin that show in part that "[t]o slow the Soviet Armor, [the VII Army Corps] devised a 'top-secret' plan to use LRRP patrols to emplace small tactical nuclear weapons." Unspecified VII Corps Documents. While these documents also mention the "72nd Field Artillery Brigade" and the "Peden Barracks," which service records show the Veteran is associated with, the submitted documents are incomplete. It is, therefore, unclear from the submitted documents how the "72nd Field Artillery Brigade" and the "Peden Barracks" actually relate to the Veteran's assertions regarding nuclear weapons and radiation exposure. See id. Nevertheless, the Veteran did state in his notice of disagreement that previous VII Corps mission groups such as his, and his old station Peden Barracks, were involved in the Army's work with nuclear weapons allegedly exposed him to multiple sclerosis-causing radiation. See May 2012 correspondence. Moreover, while multiple sclerosis is not listed as a "radiogenic disease" under 38 C.F.R. § 3.311(b) (2), the Veteran submitted scientific evidence indicating that it could possibly be radiogenic in origin. See Landtblom, et al., Multiple sclerosis and exposure to solvents, ionizing radiation and animals; Axelson, et al., Multiple sclerosis and ionizing radiation; Farmer, Hypothesis: Multiple Sclerosis High Frequency Regions Correspond to Zones of Increased Ionizing Radiation as Identified by NASA's SAMPEX Mission Which May Provide a Single Environmental Causal Factor; Eidbo, et al., Linkage - Multiple Sclerosis and Ionizing Radiation. Accordingly, VA should develop the Veteran's claim as directed under 38 C.F.R. § 3.111. VA should obtain any relevant records regarding the Veteran's potential exposure to radiation, obtain a dose estimate, and, if necessary, obtain an opinion regarding the nature and etiology of the Veteran's multiple sclerosis. 38 C.F.R. § 3.311 (a). While the Board notes that a VA etiology opinion exists on the record, that October 2011 VA etiology opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The conclusion itself is confusingly written and therefore unusable by the Board. It states: "This is a middle aged male veteran with proven MS. There is no evidence in record to imply the radiation exposure as official but this does not mean that it actually happened." Moreover, the opinion was rendered before all of the relevant evidence, including the scientific literature submitted by the Veteran, was submitted. Therefore, it was not made based on a review of the complete record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (and all other appropriate records repositories) and request copies of the Veteran's service personnel records, to include any Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran must then be given an opportunity to respond. 2. Then, forward all records concerning the Veteran's radiation exposure, including any relevant service records, statements or testimony regarding exposure, and any other information obtained, to the Under Secretary for Health for preparation of a radiation dose estimate, to the extent feasible based on the Veteran's active duty service. If a specific estimate cannot be made, a range of possible doses should be provided. If more information from the Veteran is required regarding specifics of the Veteran's alleged exposure, he 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. 4. After the development requested has been completed, VA should review the claims file to ensure compliance with the directives of this REMAND. VA must ensure that the Veteran's service records and statements and the scientific articles he submitted were addressed and the electronic Virtual VA and Veterans Benefits Management System (VBMS) claims files were reviewed. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. Then, readjudicate the remaining claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the appropriate time for a response, and then return the case to the Board. The Veteran 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). _________________________________________________ YVETTE R. WHITE 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) (2017).