Citation Nr: 18160925 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-59 480 DATE: December 28, 2018 REMANDED Entitlement to service connection for acinic cell parotid gland carcinoma, to include as due to ionizing radiation or exposure to carcinogenic chemicals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1984 to November 1984 (he was with the Army Reserves from July 1984 to January 1985) and the U.S. Air Force from January 1985 to April 1988. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for acinic cell parotid gland carcinoma, to include as due to ionizing radiation is remanded. The Veteran claims that he is entitled to service connection for his acinic cell parotid gland carcinoma because it was caused by the exposure to carcinogenic chemicals or ionizing radiation in service. Although further delay is regrettable, the Board concludes that additional development is necessary in order for VA to fulfill its duty to assist the Veteran and give him every opportunity to substantiate the issue on appeal. The Veteran filed his claim for service connection for acinic cell parotid gland carcinoma in April 2015. In an April 2015 VA Form 21-4138, Statement in Support of Claim, the Veteran alleged that he was exposed to carcinogenic chemicals, specifically hydrazine, as part of his work in aircraft maintenance dealing with fluids and fumes. In October 2015 correspondence from the Veteran he also argued that Edwards Air Force Base, California, was a test site for ionizing radiation and he was exposed to the same during his time there. The Veteran was provided a VA examination in September 2016 and the VA examiner opined that there was no literature supporting the link between the Veteran’s cancer and his claimed exposure. However, the Board finds additional development is necessary and that the AOJ has not met the VA’s duty to assist in light of the nature of the claim and it must be remanded. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement due to exposure to ionizing radiation The procedural framework for developing and adjudicating appeals for issues asserted to be the result of in-service exposure to radiation are controlled by legal principles unique to these instances. As such, the Board concludes that it would be beneficial to outline this framework in an attempt to state the reasons for remand and directives in a clear manner. The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has held that appeals to establish service connection based on alleged in-service exposure to ionizing radiation can be availed in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff’d 120 F.3d. 1239 (Fed. Cir. 1997). First, there are certain types of cancer which will be presumptively service connected. See 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, 38 C.F.R. § 3.311(b) includes a list of “radiogenic diseases” which will be service connected provided that certain conditions specified in that regulation are met. The regulation states that, if the Veteran has one of the radiogenic diseases and it is determined the Veteran was exposed to ionizing radiation, the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran’s disease resulted from radiation exposure during service. 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.” See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Where the issue involves such a question of medical causation, competent evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Initially, the Board notes that the Veteran did not engage in one of the specific radiation risk activities set forth in 38 C.F.R. § 3.309(d)(2) (such onsite participation in atmospheric detonation of a nuclear device), and thus, the presumptive provisions of 38 C.F.R. § 3.309 are not for application. The first criterion of service connection is the existence of a current disability, and in the present case, the Veteran had acinic cell parotid gland carcinoma for which he underwent a right total parotidectomy in October 2006. Therefore, the Board can move to the second criterion in cases to establish service connection due to ionizing radiation which is to verify that the in-service exposure occurred, and if so, to what extent. As applicable to this theory of entitlement, the Veteran asserts that he was exposed to ionizing radiation while stationed at Edwards Air Force Base, California. Military personnel records reflect that the Veteran was a tactical aircraft maintenance specialist and stationed at Edwards Air Force Base during his service. The Veteran submitted a print-out of the MD Anderson Cancer Center page, which discussed the risk factors for acinic cell parotid gland carcinoma, including genetic predisposition, viral infections, and the well-established risk factor or ionizing radiation. https://www.mdanderson.org/publications/cancerwise/2012/10/acinic-cell-carcinoma-apostolia-tsimberidou.html; last accessed December 12, 2018. This article supports the Veteran’s contention that if he was exposed to ionizing radiation in service, it may have caused his cancer. In light of the above, the Board concludes that additional evidentiary development is necessary to properly fulfill VA’s duty to assist the Veteran in confirming his alleged in-service exposure to ionizing radiation. Specifically, the AOJ did not take all the steps necessary to inquire as to whether the Veteran’s location or duties resulted in significant exposure to radiation. Thus, the Board finds that the case must be remanded to make further requests for evidence pertaining to the Veteran’s asserted in-service radiation exposure to determine a dose estimate. In addition to the dose information request, the regulation further compels the forwarding of all records pertaining to the Veteran’s radiation dose in service to the Under Secretary for Health. He or she will be responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). Once the dose estimate is prepared, before the claim is adjudicated, it must be referred to the Under Secretary of Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). See 38 C.F.R. § 3.311(b)(1). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the Veteran’s acinic cell parotid gland carcinoma resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i). Significantly, these procedures, aside from the PIES requests, have not as of yet been followed. Entitlement due to exposure to carcinogenic chemicals As noted above, the Veteran has also claimed that he was exposed to carcinogenic chemicals, specifically hydrazine, through the exposure to hydraulic fluid and fuels on his bare hands, splashes into his face and mouth, and soaked coveralls as part of his work as an aircraft maintenance specialist and the inhalation to aircraft fumes. The Veteran also submitted correspondence in October 2015 where he related an incident, he did not provide a date, but when he was at Edwards Air Force Base, an F-16 Fighter Jet had a hard landing, causing a flare due to magnesium components of the aircraft scarping against the concrete runway. The Veteran asserts that he was downwind of the aircraft as it came in for the hard landing, and that when it hit the ground, the landing gear collapse and the alternate power unity kicked in (making a distinctive sound the Veteran identified). This is important to the Veteran’s claim as he asserts that alternate power units are powered by hydrazine and that since he was downwind of the aircraft when it scraped against the runway, the hydrazine exhaust blew directly at him and that he was not medically screened or evaluated after the incident. Although the Veteran is not competent to state what he was exposed to as a result of being downwind of an F-16 hard landing or the impacts of working closely with aircraft fluids, fuels, and fumes, he is competent to report about what he experienced during his service and that he was exposed to some type of chemical agent. As the Veteran’s military personnel records reflect that his military occupational specialty was as an aircraft maintenance specialist and the Board’s understanding that hydrazine is used in aircraft emergency fuels by the U.S. Air Force, the Board finds that it is necessary to remand so a VA examiner to consider the Veteran’s contention that his exposure to hydrazine in service caused his cancer. Records The record does not reflect that the Veteran is in receipt of VA treatment, but he does receive private treatment for his cancer. The most recent private treatment records were submitted in December 2016, but are dated 2010. Therefore, on remand, the Veteran should be requested to provide the necessary information to obtain those records and they should be associated with the claims file. The matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify and complete a VA Form 21-4142 for any private physicians treating him for lung cancer. Make two requests for the authorized records from the identified provider, unless it is clear after the first request that a second request would be futile. 2. After completing the development in 1, complete any additional necessary development outlined in applicable administration procedures to request dosimetry information for the Veteran’s alleged exposure to radiation during his service at Edwards Air Force Base, California. 3. If radiation exposure is confirmed, take steps to develop the Veteran’s claim as directed in 38 C.F.R. §§ 3.111(b)(1)(iii) and 3.311(a)(2)(iii), to include forwarding the Veteran’s records concerning his radiation exposure, including any statements and testimony regarding radiation exposure, and any other information obtained from the U.S. Air Force, to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided.) 4. If the above-requested development results in a positive dose estimate, refer the Veteran’s case to the Under Secretary for Benefits for an opinion under 38 C.F.R. § 3.311(c) regarding whether it is at least as likely as not that the Veteran’s cancer resulted from exposure to radiation in service. 5. After completing the development requested in 1, schedule the Veteran for an appropriate examination to determine the nature, and etiology of his acinic cell parotid gland carcinoma. A copy of the file must be made available to and reviewed by the examiner. The clinician is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that acinic cell parotid gland carcinoma is proximately due to or the result of exposure to chemicals during his time in service and work as an aircraft maintenance specialist or being downwind of an F-16 hard landing. Any stated opinion should be supported by a complete rationale. If the clinician cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel