Citation Nr: 19100240 Decision Date: 01/03/19 Archive Date: 01/02/19 DOCKET NO. 12-20 180 DATE: January 3, 2019 REMANDED Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to exposure to ionizing radiation, is remanded. Entitlement to service connection for myelodysplastic syndrome (MDS), to include as due to exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to February 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2014, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. A Board decision in August 2017 denied service connection for non-Hodgkin's lymphoma, MDS, and diabetes mellitus, type II. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) only as to the service connection issues of non-Hodgkin’s lymphoma and MDS. Pursuant to a Joint Motion for Partial Remand (JMPR) by the parties, the Court, in an August 2018 Order, vacated the Board's August 2017 decision and remanded the issues back to the Board for development consistent with the JMPR. Entitlement to service connection for non-Hodgkin's lymphoma and MDS, to include as due to exposure to ionizing radiation. The Veteran claims entitlement to service connection for non-Hodgkin’s lymphoma and MDS as directly related to his period of active duty service, to include exposure to ionizing radiation. Specifically, noting that his radiation exposure came while serving as a Nuclear Weapons Electronic Specialist. These duties included inspection and cleaning of radioactive material from numerous W33 nuclear weapons. The Court has directed that additional development is necessary in this appeal. The Board is bound by the findings contained in the Joint Motion, as adopted by the Veterans Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). The JMPR stipulates that the case was referred to the Under Secretary for Benefits consistent with § 3.311(c). In August 2017, the Board relied on a January 2017 opinion from the Compensation Service Director that found “there is no reasonable possibility the Veteran’s NHL and or MDS were the result of exposure to ionizing radiation.” However, such opinion was inadequate because § 3.311(c)(1) reflects that the Under Secretary for Benefits shall consider the claim with reference to the factors specified in paragraph (e) of this section and the January 2017 opinion did not address any of the relevant factors listed in § 3.311(e). The JMPR notes the Director did not address the Veteran’s contention that he was exposed to alpha radiation, which film badges do not detect, and argument that he was exposed to internal radiation, which the Department of the Army noted may not be expressed in the Automated Dosimetry Record presented with his case, despite the first factor in section § 3.311(e) instructing consideration of the probable dose in terms of type, rate and duration, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation. Additionally, the opinion did not address the Veteran’s pertinent family history or the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the diseases in question, which are the third and sixth factors for consideration under § 3.311(e) and are significant points of reference because the record does not reflect a family history of non-Hodgkin’s lymphoma or MDS and does not reflect exposure to radiation outside of active military service. Therefore, a remand is necessary for the VA to obtain a new opinion from the Compensation Service Director consistent with § 3.311(c) and that properly addresses the relevant factors in § 3.311(e). Additionally, the Board notes that in completing the above development, the Compensation Service Director should consider an October 2018 statement by Dr. M. V. that found dosimeters do not record alpha radiation, only gamma and beta radiation, the main hazard of alpha emitters was internal and due to the Veteran’s work condition in service, there was a high probability of inhalation or ingestion of alpha radiation; exposure estimated at 340 REM internal radiation per year. The matters are REMANDED for the following action: Forward the claim to the Under Secretary for Benefits for consideration pursuant to § 3.311(c) and that properly addresses the relevant factors in § 3.311(e). In completing the above development, the Director should discuss the Veteran’s contention that he was exposed to alpha radiation which film badges do not detect, that he was exposed to internal radiation which the Department of the Army noted may not be expressed in the Automated Dosimetry Record presented with his case. The Director should also discuss the Veteran’s pertinent family history or the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the diseases in question. The Director should also take into consideration the October 2018 statement by Dr. M. V. that found dosimeters do not record alpha radiation but rather only gamma and beta radiation, that the main hazard of alpha emitters was internal, that due to the Veteran’s work condition in service, there was a high probability of inhalation or ingestion of alpha radiation and that the Veteran’s exposure estimated at 340 REM internal radiation per year. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Costello, Counsel