Citation Nr: A21020566 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210115-134718 DATE: December 27, 2021 REMANDED Service connection for chronic obstructive pulmonary disease (COPD), to include as due to ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Army from August 1965 to July 1967. In his January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran selected the hearing option; however, in August 26, 2021 correspondence, the Veteran's representative withdrew the hearing request. Consequently, the Board may only consider evidence at the time of the September 8, 2020 rating decision on appeal, as well as evidence submitted by the Appellant or his representation within 90 days following the August 26, 2021 correspondence withdrawing the hearing. 38 C.F.R. § 20.302(3)(b). Regrettably, pre-decisional error requires remand to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Discussion The Veteran asserts that chronic obstructive pulmonary disease (COPD) was incurred in, aggravated by, or otherwise attributable to, active-duty service. Specifically, in a November 2020 statement, the Veteran contends that his COPD is due to exposure to ionizing radiation as well as herbicide. The Veteran's military personnel records show that his military occupation specialty (MOS) was that of an Army Nuclear Weapons Maintenance Specialist with service in an ordnance company on Guam from March 1966 to July 1967. VA outpatient records show that after service the Veteran worked as a coal miner for 35.5 years. Service treatment records include the results of a July 1967 discharge examination in which the Veteran denied any shortness of breath and the examiner noted no lung abnormalities. The records do not include a record of measured exposure to ionizing radiation as would be appropriate for a soldier with duties maintaining or handling nuclear weapons. The Veteran has stated that he was exposed to radiation during his active-duty service in Guam while billeted with the 515th Ord. Co USARPAC. In additional to occupational radiation exposure, the Veteran contended that he was exposed to residual contamination on Guam from radioactive fallout from atmospheric testing of nuclear weapons from 1946 to 1963 including Operation Crossroads (1946) The Veteran submitted a narrative account from a named author. The context suggests that the author was a service member also stationed on Guam in 1966. His qualifications or sources of information were not indicated. The author wrote that Guam "was a staging area for the testing and it was used for the decontamination of ships and storage for radiation-contaminated munitions and equipment." See October 19, 2017 Buddy/Lay Statement. The rating decision on appeal fails to address whether the Veteran was exposed to ionizing radiation and, if so, how, and in what dose. The Veteran completed a RRAIS radiation risk activity worksheet (VA Form RRAIS) in September 2014; however, the evidence of record fails to disclose attempts to retrieve records from the U.S. Army Dosimetry Center. Moreover, the military personnel records and/or service treatment records do not contain a dosimetry record (DD Form 1141)to show actual monitored occupational exposure to ionizing radiation as would be appropriate for a soldier with duties maintaining or handling nuclear weapons.. The Veteran was not a participant in the atmospheric testing and does not fall within the scope of a radiation exposed Veteran under 38 C.F.R. § 3.309(d). However, the provisions of 38 C.F.R. § 3.311 should have been considered. VA's duty to assist includes obtaining records that in VA's constructive possession. This duty to assist requires VA to make as many requests as are necessary to obtain such records. Such records include relevant records from Federal departments or agencies. See 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). While the AOJ has sought Federal records pertaining to the Veteran's contended exposure to herbicides in Guam while billeted with the 515th Ord. Co USARPAC, the AOJ has not sought to obtain any relevant Federal records pertaining to ionizing radiation exposure. Consequently, there has been a pre-decisional error in VA's duty to assist. In January 2021, the Board remanded an appeal for service connection for other disabilities also contended to have been caused by exposure to the designated herbicides on Guam. An unidentified research agency responded only that a search of the command history for the Naval Air Station in 1966-67 and the Veteran's Army unit was unsuccessful. This level of effort is not adequate as the Veteran and the fellow service member's narrative report widespread use of herbicide throughout the island. A request to a Department of Defense research agency is necessary to determine whether the designated herbicide agents were used on Guam in March 1966 to December 1967. If a more limited period is needed for research purposes, select any shorter time in this period. The matters are REMANDED for the following actions: 1. Take all efforts to obtain Federal department or agency records concerning the Veteran's possible occupational exposure to ionizing radiation during his active-duty service as a nuclear weapons maintenance specialist in Guam (March 966 to December 1967, 515th Ord. Co USARPAC)to include but not limited to, the U.S. Army Dosimetry Center, the Office of the U.S. Army Office of the Historian, and other U.S. Army archives/repositories. All efforts should be undertaken until any records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C); 38 C.F.R. § 3.159(c)(2). Regardless of the outcome, the RO must make a formal finding as to the efforts undertaken to obtain said medical records, with specificity. 2. Take effort through the appropriate Army or Department of Defense agencies to obtain information on the location and levels of any residual radioactive contamination located generally on Guam in 1966-67 as a result of atmospheric testing of nuclear weapons and any widespread use of the designated herbicide agents. 3. If exposure to ionizing radiation or herbicide is found, consider whether a medical opinion is necessary to decide the appeal for service connection on a direct basis. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B J. Komins, 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.