Citation Nr: 1800291 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 16-02 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a blood disorder due to ionizing radiation exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael J. O'Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from December 27, 1943 to July 25, 1946. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Morrison, Montana. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a blood condition, which he alleges resulted from exposure to ionizing radiation while stationed near Hiroshima, Japan, in the Marines in 1945-1946. His treatment records reflect a diagnosis of essential thrombocytosis which is being monitored by hematology/oncology. This condition is not among the specified radiogenic diseases, as defined by VA at 38 C.F.R. § 3.311(b)(2). However, the AOJ found some references within the National Institutes of Health (NIH) of a potential link between thrombocytosis and ionizing radiation exposure. The Board has found a similar reference. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3056786. In January 2016, a VA examiner stated that medical literature did not describe ionizing radiation exposure as having a "clear-cut chronic end result on human thrombopiesis/thrombocytosis/thrombocytopenia." Notably, the benefit of the doubt rule does not require that a medical principle to have reached the level of scientific consensus to support a claim for veterans benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). As the Veteran may have been exposed to radiation in the service, and there is some competent evidence suggesting that his blood disorder could be radiogenic in nature, further development is required. For a claim based upon exposure to ionizing radiation during service, service connection can be demonstrated by three different methods. First, 38 C.F.R. § 3.309(d)(2) provides a list of cancers that will be presumptively service-connected if manifested in a radiation-exposed veteran. See 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. Second, 38 C.F.R. § 3.311(b) provides a list of "radiogenic diseases" that will be service connected provided that certain conditions specified in that regulation are met. Third, direct service connection can be established by "show[ing] that the disease or malady was incurred during or aggravated by service," a task which "includes the difficult burden of tracing causation to a condition or event during service." Rucker v. Brown, 10 Vet. App. 67, 71 (1997) (citing Ramey v. Brown, 9 Vet. App. 40, 44 (1996); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean: onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(3)(ii). In this case, the Veteran has asserted that he was exposed to radiation through one of the cited "radiation-risk activities," specifically as a member of the occupation forces stationed near Hiroshima, Japan, in 1945-1946. Under the provisions of 38 C.F.R. § 3.311, a "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2)(xxiv). In this case, the Veteran is not claiming to have a specified cancer, but rather is alleging that his diagnosed blood disorder, including thrombocytopenia, is related to his exposure to ionized radiation and should qualify as a "radiogenic disease." Pursuant to 38 C.F.R. § 3.311, when a claimant contends that a radiogenic disease which first became manifest after service, though not to a compensable degree within any other applicable presumptive period, is the result of exposure to ionizing radiation in service, an assessment is made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311(a). Except as otherwise provided, the radiogenic disease must become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these threshold requirements are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). In order to do so, the RO must request dose information as provided by 38 C.F.R. § 3.311(a)(2). 38 C.F.R. § 3.311(a)(2)(iii) requires that, in claims not based upon participation in atmospheric nuclear testing or Hiroshima and Nagasaki occupation, dose data normally include, but may not be limited to, the veteran's Record of Occupational Exposure to Ionizing radiation (DD Form 1141), service treatment records and other records which may contain information pertaining to radiation exposure in service. All such records must then be forwarded to the Under Secretary for Health, who will be responsible for the preparation of a dose estimate. 38 C.F.R. § 3.311(a)(2)(iii). Finally, if exposure to ionizing radiation is identified, the Veteran's claim must then be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). 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. Associate all outstanding records with the claims file. 2. Undertake the development and procedural actions for radiogenic diseases outlined in 38 C.F.R. § 3.311. 3. After completing all indicated development, and any additional development deemed necessary, readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, then a supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ T. MAINELLI 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).