Citation Nr: 21070209 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 06-06 909 DATE: November 23, 2021 REMANDED Entitlement to service connection for the cause of the Veteran's death is remanded. Entitlement to accrued benefits is remanded. REASONS FOR REMAND The Veteran had active military service from April 1962 to April 1965. He died in April 2005. The appellant is his surviving spouse. In connection with this appeal, the appellant testified at an in-person hearing before the undersigned Veterans Law Judge in January 2009. A transcript of that hearing has been associated with the claims file. The Board has remanded this appeal for further development on several occasions. It was most recently before the Board in March 2020. The appellant has maintained four theories of entitlement to service connection for the cause of the Veteran's death: 1.) asbestos exposure; 2.) herbicide exposure; 3.) the Veteran's weight in service; and 4.) radiation exposure. In the March 2020 remand, the Board noted that VA regulations provide that in claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation, and then all such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate. 38 C.F.R. § 3.311(a)(2)(iii). The Board observed that the regulation is mandatory and applies to all service-connection claims for radiogenic diseases based on in-service occupational exposure to ionizing radiation. The Board then requested that the agency of original jurisdiction (AOJ) attempt to obtain the United States Army's Hercules Missile Technical Manual and forward it, if obtained, along with other pertinent records. Also, in light of January 1995 correspondence from the Veteran, the Board requested that the AOJ obtain his records from the Social Security Administration. The Board then requested that the AOJ forward all available records concerning the Veteran's exposure to radiation to the Under Secretary for Health for preparation of a dose estimate. Thereafter, the AOJ was to forward the claims file to the Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311. Pursuant to the prior remand, the AOJ obtained technical manuals on the Nike-Hercules antiaircraft/air defense guided missile system. The AOJ also submitted several requests to the United States Army Dosimetry Center for records of the Veteran's exposure to ionizing radiation. The Army Dosimetry Center replied that it was unable to locate any records for the Veteran. The AOJ also obtained a reply from the Social Security Administration indicating that the Veteran's records have been destroyed. Then, in a June 2021 supplemental statement of the case, the AOJ continued the denial of the appellant's claims. The AOJ noted that since there was no evidence of the Veteran's exposure to radiation, it was unable to obtain a dose estimate from the Under Secretary for Health. While the Board acknowledges that a record of the Veteran's exposure to ionizing radiation during service could not be obtained, a request to the Under Secretary for Health for a dose estimate still must be made, pursuant to VA regulations, and in compliance with the prior remand. Thus, the AOJ should forward to the Under Secretary for Health for preparation of a dose estimate all available records concerning the Veteran's exposure to radiation, including his Chemical, Biological, and Radiological (CBR) training in August 1963, his classification as a Hercules missile fire control crewman, his assertion that he set warhead frequency codes for practice runs, the technical manuals on the Nike-Hercules antiaircraft/air defense guided missile system, and the November 2005 buddy statement by P.S. alleging that he held a radioactive pill to test a Geiger counter. Thereafter, the AOJ should forward the claims file to the Under Secretary for Benefits for appropriate action. The matters are REMANDED for the following action: 1. Forward all available records concerning the Veteran's exposure to radiation to the Under Secretary for Health for preparation of a dose estimate, to the extent feasible, based on available methodologies, pursuant to 38 C.F.R. § 3.311(a)(2)(iii). (Continued on the next page) In preparing a dose estimate, the Under Secretary for Health should be instructed to consider a.) the Veteran's CBR training in August 1963; b.) the Veteran's classification as a Hercules missile fire control crewman; c.) the Veteran's assertion that he set warhead frequency codes for practice runs; d.) the technical manuals on the Nike-Hercules antiaircraft/air defense guided missile system; and e.) the November 2005 buddy statement by P.S. which alleges that the Veteran held a radioactive pill to test a Geiger counter. 2. Thereafter, forward the claims file to the Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.