Citation Nr: 1752543 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-08 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for cancerous inoperative brain tumor as a result of exposure to ionizing radiation. 2. Entitlement to service connection for seizure as secondary to cancerous inoperative brain tumor as a result of exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Peden, Associate Counsel INTRODUCTION The Veteran had active duty from August 1977 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama, which denied the issues on appeal. The Board recognizes that the authorized representative states three issues are on appeal: entitlement to service connection for an eyesight related disability, cancerous inoperative brain tumor as a result of exposure to ionizing radiation, and seizure as secondary to cancerous inoperative brain tumor as a result of exposure to ionizing radiation. However, there are only two issues perfected on appeal on the VA-9 form filled out by the Veteran: entitlement to service connection for cancerous inoperative brain tumor and for seizure. Thus, the Board will not further discuss the claim for entitlement to service connection for an eyesight related disability, as the Veteran did not perfect an appeal as to that issue and it is thus not before the Board for adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND After review of the record, the Board finds that remand for further development is warranted. The Veteran contends that he is entitled to service connection for cancerous inoperative brain tumor as a result of exposure to ionizing radiation he received while working on a nuclear submarine as a ship fitter, and for seizure as secondary to cancerous inoperative brain tumor. During the development of this claim, the RO associated the Veteran's DD 1141 (Record of Ionizing Radiation Exposure) with his claims file. Although VA received this record, the Veteran's records were not forwarded to the Under Secretary for Health to prepare a dose estimate for the Veteran's claimed exposure to ionizing radiation while on active duty. The Board notes that a dose estimate is necessary prior to the adjudication of claims for radiogenic diseases, such as cancer of the brain, based on ionizing radiation exposure that first manifest after service and cannot be granted under the presumptive provisions of 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309. See 38 C.F.R. § 3.311 (a). Moreover, the record also reflects that a medical opinion was not obtained from the Under Secretary for Benefits to determine if it is at least as likely as not that the Veteran's disability is a result of exposure to radiation while serving on active duty. Accordingly, the case is REMANDED for the following action: 1. Request a dose assessment from the Under Secretary for Health pursuant to 38 C.F.R. § 3.311 (a)(2)(iii). This office should also be sent a copy of the claims file and a copy of this remand. (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 his alleged exposure, he should be contacted and asked to provide the information. 2. After a dose estimate has been obtained, and if that estimate is greater than zero, the case should be referred to the Under Secretary for Benefits to obtain an opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran's currently-diagnosed cancerous inoperative brain tumor and/or seizure resulted from exposure to ionizing radiation during active service, pursuant to the procedures outlined in 38 C.F.R. § 3.311(c), (d), and (e). 3. The RO should also undertake any other development it determines to be necessary to properly develop these claims. 4. Then readjudicate the claims on appeal, as are listed on the title page of this Remand. If any benefit is not fully granted, send the Veteran a Supplemental Statement of the Case (SSOC) and give him and his representative opportunity to respond before returning the file to the Board for further appellate consideration of the claims. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).