Citation Nr: A21016751 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 210908-183895 DATE: October 14, 2021 REMANDED Entitlement to service connection for a stomach disability claimed as due to radiation exposure is remanded. Entitlement to service connection for rheumatoid arthritis claimed as due to radiation exposure is remanded. Entitlement to service connection for loss of teeth and gum disease claimed as due to radiation exposure is remanded. Entitlement to service connection for residuals of cataract with pseudophakia claimed as altered vision, both eyes due to radiation exposure is remanded. REASONS FOR REMAND The Veteran had active service from May 1963 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. On a September 2021 Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran opted for direct review of his appeal by the Board. As this is a Direct Review appeal under the AMA, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. The Board parenthetically notes that the issues of entitlement to an increased rating for bilateral hearing loss, entitlement to service connection for residuals of skin cancer, entitlement to service connection or coronary artery disease, entitlement to service connection for diabetes mellitus and entitlement to service connection for hypertension are the subject of an August 2021 Notice of Disagreement and will be part of a separate Board AMA decision. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. The Veteran contends that his claimed stomach disability, rheumatoid arthritis, loss of teeth and gum disease and residuals of cataract with pseudophakia are secondary to his in-service radiation exposure. Specifically, the Veteran claims that while stationed in Germany, his unit carried 2 nuclear warheads which were assigned for practice. Protective clothing was not provided and he was not assigned a film badge. A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309 (d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309 (d)(3)(ii)(A). The term "onsite participation" means presence at the test site, or performance of military duties in connection with ships, aircraft, or other equipment used in direct support of the nuclear test, during the official operational period of an atmospheric nuclear test. 38 C.F.R. § 3.309 (d)(3)(iv)(A). Diseases specific to radiation-exposed veterans are the following: leukemia (other than chronic lymphocytic leukemia), thyroid cancer, breast cancer, cancer of the pharynx, esophageal cancer, stomach cancer, cancer of the small intestine, pancreatic cancer, multiple myeloma; lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), salivary gland cancer, cancer of the urinary tract, bronchio-alveolar carcinoma, bone cancer, brain cancer, colon cancer, lung cancer, and ovarian cancer. 38 C.F.R. § 3.309(d) (2). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. The Veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if having had a radiogenic disease and claimed exposure to ionizing radiation in service. A stomach disability (aside from stomach cancer), rheumatoid arthritis, loss of teeth and gum disease and residuals of cataract with pseudophakia are secondary are not any of the specific "radiogenic diseases" listed under 38 C.F.R. § 3.311 (b) (2). However, as the Veteran contends that his claimed conditions may be "radiogenic diseases," as he was exposed to radiation in service, the Board finds that the development procedures of section 3.311 still apply. See 38 C.F.R. § 3.311 (b) (4). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether his disability is otherwise the result of active service. The record reflects that the AOJ requested the Veteran's service personnel records and DD Form 1141 Record of Occupational Exposure to Ionizing Radiation in an attempt to confirm his exposure to radiation. Notably, an August 2021 response from the Army Dosimetry Center indicated that they were unable to locate any records for the Veteran. As such, no dose estimate was prepared. However, the Board finds that additional development is needed prior to adjudication. As noted by the Veteran's representative in a September 2021 Appellant's Brief, the Agency of Original Jurisdiction (AOJ) has not obtained dosimetry information from the Defense Threat Reduction Agency (DTRA) or a dose estimate. Notably, 38 C.F.R. § 3.311 provides that all available records concerning the Veteran's exposure to radiation will 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. 38 C.F.R. § 3.311 (a)(2)(iii). Therefore, the Veteran's claims are remanded to the AOJ for purposes of determining the Veteran's exposure to radiation and continuing case development pursuant to all pertinent VA policy procedures and regulations. Specifically, the provisions of 38 C.F.R. § 3.311 should be followed to determine whether the Veteran was exposed to ionizing radiation during service and for a dose estimate. If it is determined that there was no exposure to ionizing radiation, this should be explained. If there is a positive dose estimate, the remainder of the provisions for claims based on ionizing radiation should be followed. The Board noted that AMA provides that remands are warranted based on VA's duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand only where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. After a thorough review of the record, the Board finds the arguments of the Veteran's representative to be compelling. In requesting additional development on remand in this case, the Board notes that the basis for this remand arises from deficiencies in the record existing prior to the appealed AMA decision. Notably, prior to the rating decision, there was evidence of a possible in-service radiation exposure. As noted above, despite the possible in-service radiation exposure, adequate development pursuant to 38 C.F.R. § 3.311 for claims based on exposure to ionizing radiation was not provided prior to the appealed AMA decision. Thus, the Board finds that a remand is necessary in order to sufficiently develop the Veteran's service connection claims as due to ionizing radiation as there exists a pre-decisional duty to assist error and the claim must be remanded for additional development. The matters are REMANDED for the following action: The AMC/RO should develop the Veteran's claims pursuant to the provisions of 38 C.F.R. § 3.311. Specifically, based upon the VA Under Secretary for Health's dose estimates, the Under Secretary for Benefits and Under Secretary for Health should provide opinions as to whether it is at least as likely as not that the Veteran's stomach disability, rheumatoid arthritis, loss of teeth and gum disease and residuals of cataract with pseudophakia were caused by ionizing radiation exposure during service. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.