Citation Nr: 20021460 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-56 305 DATE: March 25, 2020 REMANDED Entitlement to service connection for the cause of death, to include as a result of exposure to ionizing radiation or herbicide agent exposure is remanded. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1961 to September 1981, to include service on Adak, Alaska during the period the Cannikin underground nuclear tests were being performed on Amchitka Island, Alaska and later in the waters of the Republic of Vietnam. The Veteran died in February 2013, and the appellant is his widow. 1. Entitlement to service connection for the cause of death, to include as a result of exposure to ionizing radiation or herbicide agent exposure is remanded. 2. Entitlement to Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is remanded. The record does not contain sufficient evidence regarding the Veteran’s asserted radiation exposure. A death certificate shows the Veteran was diagnosed with a brain tumor (glioblastoma) which is a radiogenic disease under 38 C.F.R. § 3.311(b)(2). A remand is required to obtain the Veteran’s complete service records, to include a DD Form 1141, from all appropriate sources. In this case, the appellant asserts that the Veteran’s death is related to his military service. She primarily contends that he developed a brain tumor, namely a glioblastoma, as a result of service, to include as due to exposure to ionizing radiation while serving at the Adak Naval and Air Facility on Adak Island, Alaska in 1971, close to Amchitka Island, Alaska during the time the Cannikin underground nuclear tests were being performed. As a result, the Veteran was exposed to ionizing radiation by air and/or ocean fish consumed from the water surrounding the islands. (See January 2014 Statement in Support of Claim and April 2014 Radiation Risk Activity Information Sheet). He was diagnosed with stage IV, glioblastoma many years later as a result. (See November 2016 Form 9). Alternatively, she contends his brain tumor developed due to exposure to multiple contaminants on Adak Island. Id. Otherwise, she contends he developed his brain tumor from exposure to herbicide agents while serving on a ship located in the in-land waterways or blue waters of the Republic of Vietnam. Id. In fulfilling the VA’s duty to assist, the RO contacted the Department of Navy to attempt to obtain the Veteran’s history of any service-incurred occupational exposure to ionizing radiation. In a June 2014 letter, Department of Navy responded that it reviewed their registry, by name, service number and social security number, but could find no reports of occupational exposure to ionizing radiation pertaining to the Veteran. Pertinently, the letter noted that the official exposure record is maintained in the individual’s medical record; therefore, it would be prudent to compare that record (e.g. personnel records) and this report. Because the Veteran was part of the naval forces in Adak, Alaska, the Department of Navy forwarded the appellant’s the request for the Veteran’s in-service radiation exposure history to the Defense Threat Reduction Agency [DTRA] (e.g. an agency that maintains a registry for participants exposed to ionizing radiation at Adak, Alaska). In a November 2014 letter, DTRA concluded that a review of DOE and EP records found no leakage or release of radioactive contamination to Adak, Alaska from operation Cannikin. Long-term fish sampling found no radioactive contaminants attributed to Operation Cannikin. DTRA also rendered a dose estimate, finding the Veteran’s combined external gamma and internal doses for his brain tumor during his assignment to Adak Naval Air station was 0.000 rem in all categories (total external gamma dose, upper bound total extremal gamma dose, internal committed alpha dose to the brain (brain tumor), upper bound committed alpha dose to the brain tumor), internal committed beta plus gamma dose to the brain (brain tumor). However, DTRA acknowledged personnel directly involved with test hole and calibration equipment issues during or after operation Cannikin were exposed to radiation. Moreover, DTRA acknowledged it was not able to confirm the veteran was a participant in Operation Cannikin. Radiation exposure claims are governed by particular procedures set forth under 38 C.F.R. § 3.311. As an initial matter, it has been established that the Veteran had a “radiogenic disease,” namely a brain tumor (glioblastoma), as provided for under 38 C.F.R. § 3.311(b)(2). Again, the appellant alleges the Veteran had ionizing radiation exposure by both atmospheric nuclear weapons testing, the Cannikin underground nuclear tests and by toxic residuals in the surrounding water and fish fed to the Veteran. (See November 2016 Form 9). She also contends that the Veteran had exposure to ionizing radiation due to other contaminants on the island. Id. In these cases, 38 C.F.R. § 3.311(a)(2)(iii) requires that any available records concerning the Veteran’s exposure be obtained, to include Veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) and then forwarded to the Under Secretary for Health for preparation of a dose estimate. This was not done in the present case. Rather, the RO properly requested records relating to any potential exposure to radiation, to include furnishing DD 1141 in July 2016. However, the response from the National Archives and Records Administration (NARA) was that “the document or information requested was not a matter of record.” (See July 2016 Military Personnel Record). NARA only furnished records related to the request for records related to the Veteran’s service in Vietnam, the separate theory of entitlement. Id. Based on these negative responses, the RO continued to deny the appellant’s claim in an October 2016 Statement of the Case without obtaining the DD Form 1141 or forwarding the claim on to the Under Secretary for a dose estimate. The inquest does not cease here simply because the Department of Navy and DTRA are unable to locate data for the Veteran in two registries. VA regulations, 38 C.F.R. § 3.311, directs the RO/VA to request any available records concerning the Veteran’s exposure to radiation, to include the DD Form 1141 as well as dose estimate. Accordingly, VA must develop the Veteran’s claim as directed under 38 C.F.R. § 3.311 and obtain any available records concerning the veteran’s exposure to radiation, to include his DD Form 1141. Upon receipt, all records must be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible based on available methodologies. In addition, the appellant contends that the Veteran was exposed to herbicide agents while serving aboard in the off-shore waters of Vietnam. Updated guidance provides that, for the purposes of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “Service in the Republic of Vietnam” includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (2019). An April 2014 Personnel Information Exchange Service (PIES) response from the National Personnel Records Center (NPRC) indicates that the Veteran served aboard the U.S.S. Bon Homme Richard was in the official waters of the Republic of Vietnam from May 2, 1970 to May 26, 1970; June 1, 1970 to June 14, 1970; July 1, 1970 to July 29, 1970; August 17, 1970 to September 3, 1970; September 11, 1970 to September 12, 1970 and from September 26, 1970 to October 21, 1970. This response all indicated that the Veteran served aboard the U.S.S. Roosevelt which was in the official waters of the Republic of Vietnam from August 9, 1966 to September 12, 1966; October 1, 1966 to October 3, 1966; October 19, 1966 to November 14, 1966; November 24, 1966 to December 28, 1966 and January 20, 1967 to January 21, 1967. Notably, NPRC did not explain its definition of “official waters” of Vietnam namely, whether such a finding indicates service within 12 nautical miles from the shores of Vietnam. Given the foregoing, the Board finds that remand is necessary to obtain clarification from NPRC regarding its definition of “official waters” as it relates to service in the Republic of Vietnam. Additionally, on remand, efforts should be made to obtain copies of deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Franklin Roosevelt and/or U.S.S. Bon Homme Richard during the Veteran’s service period. The matters are REMANDED for the following action: 1. Develop the appellant’s assertion that the Veteran was exposed to radiation from while serving at the Adak Naval and Air Facility on Adak Island, Alaska in 1971, close to Amchitka Island, Alaska during the time the Cannikin underground nuclear tests were being performed. Consider the appellant’s assertion that the Veteran was exposed to multiple contaminants on at the Adak Naval and Air Facility on Adak Island, Alaska as well. Specifically, obtain the Veteran’s DD Form 1141. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion. If more details are needed, contact the appellant to request the information. 2. Contact the National Archives and Records Administration or any other appropriate repository of records to determine whether the Veteran entered the 12 nautical mile territorial sea of Vietnam while serving aboard the U.S.S. Franklin Roosevelt and/or U.S.S. Bon Homme Richard. Note that an April 2014 PIES response identified the dates these vessels were located in the official waters of Vietnam. If necessary, this should include obtaining the deck logs of the U.S.S. Franklin Roosevelt and/or U.S.S. Bon Homme Richard during the time that the Veteran served aboard these vessels. If any contacted repository cannot provide the requested information, the claims file should be noted as such and the Veteran notified as such. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Pendleton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.