Citation Nr: 1802981 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-23 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for renal cell carcinoma (kidney cancer). 2. Entitlement to service connection for papillary cancer of the thyroid (thyroid cancer). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and L.H.K. ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran had active military service from June 1960 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran, along with L.H.K., appeared and testified at an RO hearing held before a Decision Review Officer and a Board video-conference hearing held before the undersigned Veterans Law Judge (VLJ) in November 2012 and October 2015, respectively. Copies of the transcripts of these hearings have been associated the with claims file. In January 2016 and May 2017 the Board remanded the appeal for further development. 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) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary. The development following the Board's May 2017 remand did not comply with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Central to the Board's previous remand was the need for the AOJ to contact the United States Air Force to obtain technical information regarding the AN/FPS-35 radar system to adequately determine whether the intensity of the electromagnetic fields generated by the system were sufficient to be considered ionizing, or non-ionizing. This need was based on the Board's previous determination, in the January 2016 remand, that the resolution of this case did not rest solely on the question of exposure to ionizing radiation. After a review of the records it appears that no efforts were made to request this information from the United States Air Force pursuant to the Board's prior remand directives. Therefore, the Board must remand the appeal again to make efforts to obtain this information. See Stegall, 11 Vet. App. at 268. Following the Board's May 2017 remand the AOJ made requests for the technical information the Board sought but made the request to the National Personnel Records Center and not the United States Air Force or another appropriate agency. If the information received from the United States Air Force confirms that the AN/FPS-35 emitted ionizing radiation on a regular basis to which the Veteran would have been exposed working in the control rooms, then efforts should be undertaken to obtain a new dose estimate, to include seeking an independent expert opinion as provided in 38 C.F.R. § 3.311(a)(3) if necessary. Furthermore, the Board finds that an addendum to the March 2016 VA examination and opinion will be required to address any information provided by the United States Air Force, pursuant to these requests, regarding any non-ionizing radiation the Veteran was exposed to during service. 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. Contact the United States Air Force, or other appropriate agency (not the National Personnel Records Center), and request technical information regarding the AN/FPS-35 radar system that was located at the Air Force Station in Manassas, Virginia, from approximately 1960 to 1965, especially information regarding the type of electromagnetic fields generated by the system, the frequency of such fields and the amplitude or power density at which the system functioned. 2. If the information obtained regarding the AN/FPS-35 radar system confirms that it emitted electromagnetic fields of sufficient intensity to be considered ionizing radiation, then the Veteran's case should again be referred to the Under Secretary for Health to obtain a dose estimate or, if appropriate, to an independent expert pursuant to 38 C.F.R. § 3.311(a)(3). 3. If the information obtained regarding the AN/FPS-35 radar system shows that it emitted electromagnetic fields considered to be non-ionizing radiation, the AOJ must contact the VA examiner who examined the Veteran in March 2016 in connection with his claims for service connection for kidney and thyroid cancer and request an addendum opinion. Based on the examination and a review of the record, specifically information provided by the United States Air Force, the examiner should address any connection between non-ionizing radiation emitted by the AN/FPS-35 and kidney and/or thyroid cancer. 4. Thereafter, the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. 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 (West 2014). _________________________________________________ M.E. LARKIN 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).