Citation Nr: 1806666 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 04-41 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertensive vascular disease, to include as due to ionizing radiation. 2. Entitlement to service connection for diabetes, to include as due to ionizing radiation. 3. Entitlement to service connection for dementia, to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Jeffrey Bunton, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from January 1956 to December 1957. He passed away in November 2009. The appellant is his surviving spouse and has been substituted in his place for the purposes of this appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims for service connection for hypertension, diabetes and dementia. The procedural history of this appeal is lengthy. The Veteran and appellant testified at a Board hearing in September 2005. The Veterans Law Judge (VLJ) who conducted that hearing has since left the Board. In May 2012, the appellant was offered the opportunity for another hearing but did not respond, and therefore that opportunity is considered waived. The Board denied the claims in February 2006. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to an August 2007 Joint Motion for Remand (JMR) filed by the parties, the Court remanded the matter back to the Board. In February 2008, the Board remanded the matter for action consistent with the JMR. In May 2012, the matter was again remanded for further development and to clarify the appellant's substitution status. The Board then denied the claims in January 2014. That decision was appealed to the Court, which remanded the matter back to the Board pursuant to a March 2015 memorandum decision. The Board then remanded the matter for additional development in January 2016. In August 2016, the Board again denied the claims, and the appellant once again appealed that decision to the Court, which remanded the matter back to the Board pursuant to a September 2017 JMR. 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 appellant if further action is required. REMAND As noted above, this matter was returned to the Board pursuant to a September 2017 JMR. "A joint motion for remand, when drafted properly, identifies . . . clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand. This increases both administrative and judicial efficiency." Carter v. Shinseki, 26 Vet App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (2015). In his July 2003 claim, the Veteran indicated that he was exposed to ionizing radiation in White Sands, New Mexico. In his September 2005 hearing testimony, the Veteran stated that he traveled to White Sands during his period of service. The September 2017 JMR stated that the Board provided inadequate reasons and bases for rejecting his statement by merely stating that there was no objective evidence that he was actually present there. Given that the Veteran's service records are incomplete, the Board will accept his statement as credible, and no further development is necessary with respect to that specific point. The September 2017 JMR also stated that the Board failed to develop or address whether the Veteran was exposed to ionizing radiation from a source other than his presence at White Sands or potentially witnessing Operation PLUMBBOB or REDWING. Therefore, on remand, the appellant will be afforded the opportunity to submit statements or other evidence regarding any other sources of exposure. Notably, "radiogenic diseases" are diseases that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). The Board would be remiss if it did not clarify that the conditions claimed on appeal (hypertensive vascular disease, diabetes and dementia) are not among those conditions identified as radiogenic diseases. Id. For ionizing radiation claims based on conditions not listed as radiogenic diseases, VA will still consider those claims under the provisions of 38 C.F.R. § 3.311 provided that the appellant cites or submits competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). Ultimately, if any of the claimed conditions are not identified as radiogenic diseases, then it shall not be determined that they resulted from exposure to ionizing radiation. 38 C.F.R. § 3.311(b)(1)(iii). Historically, the list of radiogenic diseases identified in the regulations was exclusive, and the development of a radiogenic disease was a threshold requirement for entitlement to compensation under 38 C.F.R. § 3.311. Conditions not specifically listed in the regulation as radiogenic diseases were excluded from consideration. This was amended in February 1995 following the decision of Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The amendment provided that a claim for an unlisted condition could be considered under 38 C.F.R. § 3.311 if a claimant submitted competent scientific or medical evidence that the condition is a radiogenic disease. 60 Fed. Reg. 9,627 (February 21, 1995). The Board's purpose in reciting these regulations and their history is to point out that regardless of how much ionizing radiation exposure the Veteran may have been exposed to, service connection for the claimed conditions cannot be established from such exposure unless they are identified as radiogenic diseases. In this case, because they are not on the list of radiogenic diseases, the appellant requires competent scientific or medical evidence showing that they can be induced by ionizing radiation. During the September 2005 hearing, the appellant testified that some medical specialists had said that radiation might have led to the Veteran's disabilities. Pursuant to the August 2007 JMR, the Board remanded the matter in February 2008 to allow the Veteran to submit evidence from these physicians referred to in the hearing, or to provide sufficient information for VA to enable VA to obtain the relevant records. As discussed in the January 2014 and August 2016 Board decisions, no such supporting evidence was submitted. Notwithstanding the above, the Court, by way of the parties' September 2017 JMR, has instructed the Board to undertake the development that was discussed earlier regarding in-service ionizing radiation exposure. In order to make sure that the ordered development does not address in-service radiation exposure without addressing the question of radiogenic diseases, the Board will also remand the claims so that the appellant can be notified that she may submit competent evidence that hypertensive vascular disease, diabetes and/or dementia are radiogenic diseases. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands that would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). 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. Notify the appellant that she may submit statements or evidence regarding the Veteran's exposure to ionizing radiation from sources other than White Sands, New Mexico, or potentially witnessing Operation PLUMBBOB or REDWING. Also notify the appellant that she may submit competent scientific or medical evidence showing that hypertensive vascular disease, diabetes and/or dementia can be induced by ionizing radiation. 2. If, and only if, the appellant submits competent scientific or medical evidence showing that hypertensive vascular disease, diabetes and/or dementia can be induced by ionizing radiation, then undertake additional development in accordance with the procedures of 38 C.F.R. § 3.311, to include obtaining dose estimates based on the Veteran's presence in White Sands, New Mexico, as acknowledged above. 3. Then readjudicate these claims in light of this and all other additional evidence. If the claims continue to be denied, send the appellant and her representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response 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 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. §§ 5109B, 7112 (2012). _________________________________________________ JOHN Z. JONES 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).