Citation Nr: 1819081 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 14-25 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for colon cancer. 2. Entitlement to service connection for colon resection. 3. Entitlement to service connection for prostate cancer. 4. Entitlement to service connection for head and neck cancer. 5. Entitlement to service connection for atrial fibrillation. 6. Entitlement to service connection for neurological damage/Parkinson's disease. 7. Entitlement to service connection for peripheral vascular disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. He died in January 2015. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2016, the appellant testified before the undersigned Veterans Law Judge at a Travel Board hearing in Providence. In September 2016, the Board dismissed the pending appeal for TDIU; reopened the claims for service connection for atrial fibrillation, colon cancer, colon resection, head and neck cancer, neurological damage, peripheral vascular disease, and prostate cancer; and then remanded the reopened claims for additional development. The appeal is REMANDED to the agency of original jurisdiction. VA will notify the appellant if further action is required. REMAND Prior to his death, the Veteran had perfected appeals for service connection for colon cancer, prostate cancer, head and neck cancers, and other disorders, to include as due to Agent Orange exposure while he was stationed at Fort McClellan in Anniston, Alabama; and due to radiation exposure in his capacity as Unit Commander at a HERC nuclear missile base in Edgemont, Pennsylvania. During a March 2013 Decision Review Officer (DRO) hearing, the Veteran testified that he lived on site (in the barracks area and Officers' barracks quarters) with the nuclear missiles in the launch area in Edgemont, Pennsylvania; and that that site had 24 nuclear missiles, 5 to 20 kilotons in size. Military records confirm that the Veteran was a Nike HERC "Missile Unit Commander" with Army Headquarters Battery 3d Battalion, (HERC) 43d Artillery at military installations in Edgemont, Pennsylvania, and Pedricktown, New Jersey ARADCOM, from March 1968 to March 1970. Additionally, during his 2013 DRO hearing, the Veteran testified that his duties brought him in close proximity to these nuclear missiles, and his testimony is consistent with his military performance review records. After service, the Veteran was diagnosed with colon cancer at his age of 55, and with prostate cancer years a few years later. See medical records dated in 2000 regarding colon cancer, and medical records dated in 2009, which advise of brachytherapy treatment for prostate cancer in 2004. He was diagnosed with head and neck cancer around 2007. See, e.g., July 23, 2007 hematology/oncology records, which read "new diagnosis of a possible T2, squamous cell carcinoma of the floor of the mouth, on the right side, and palpable T1 squamous cell carcinoma of the larynx on the opposite side." Colon cancer and prostate cancer are among the radiogenic diseases specifically listed at 38 C.F.R. § 3.311(b)(2). As for the Veteran's multisite head and neck cancers, 38 C.F.R. § 3.311(b)(2)(xxiv) provides for "any other cancer." In September 2016 the Board remanded the case, in accordance with 38 C.F.R. § 3.311(a)(1), for acquisition of a dose estimate from VA's Under Secretary of Health. In May 2017, the case was returned to the Board with a memo written by a "Post-9/11 Era Environmental Health Program Director." Unfortunately, the steps prescribed at 38 C.F.R. § 3.311(b) et seq. were not substantially followed. See also VBA Adjudications Manual, M21-1, IV.ii.1.C.2.a. The Board finds that the case should be remanded to follow the development set forth in 38 C.F.R. § 3.311. As the Veteran's colon resection, neurological damage/Parkinson's disease, peripheral vascular disease, and atrial fibrillation may be related to the Veteran's cancers, those claims are also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. In accordance with 38 C.F.R. § 3.311(a), submit this case to the Under Secretary for Health for a dose estimate of this Veteran's exposure to ionizing radiation during his active duty service. This dose estimate must be provided separately from than the "Post-9/11 Era Environmental Health Program Director" that provided the February 8, 2017 Radiation Review Memorandum. In conjunction with this request for dose estimate, forward a copy of the Veteran's military records, a copy of the March 2013 Hearing Transcript, a copy of the August 7, 2017 letter from the Army Dosimetry Center, and a copy of the Veteran's October 2011 statement regarding his radiation exposure during service, to the Under Secretary for Health. See M21-1, IV.ii.1.C.4.c. If this task is delegated by the Under Secretary for Health to someone else to perform, that information must be fully disclosed and documented in the claims file. 2. After the dose estimate is obtained (step 1), submit this case to the Under Secretary for Benefits for an opinion, by the Under Secretary for Benefits, as to whether it is at least as likely as not that the Veteran's colon cancer, and/or prostate cancer, resulted from radiation exposure in service. See 38 C.F.R. § 3.311(b)(1). In formulating the requested opinion, the Under Secretary for Benefits must review the claims file and consider the factors listed at 38 C.F.R. § 3.311(e). See 38 C.F.R. § 3.311(c)(1). The Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1). If the Under Secretary for Benefits, after considering any opinion of the Under Secretary for Health, is unable to conclude whether it is at least as likely as not, or that there is no reasonable possibility, this Veteran's colon cancer, and/or prostate cancer, and/or head and neck cancer, resulted from radiation exposure in service, the Under Secretary for Benefits shall refer the matter to an outside consultant in accordance with paragraph 38 C.F.R. § 3.311(d). If anyone is consulted for an advisory medical opinion by the Under Secretary for Benefits (see 38 C.F.R. § 3.311(c) and (d)), that fact must be documented in the claims file. 3. After completion of the above and any other development as may become indicated, re-adjudicate all of the claims. If any benefit remains denied, provide the appellant and her representative a supplemental statement of the case and provide an opportunity for response. Then, return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board 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).