Citation Nr: 21007716 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-27 439 DATE: February 10, 2021 REMANDED Entitlement to service connection for the cause of the Veteran’s death, to include as due to exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to September 1995. He died in September 2006. The appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The appellant testified at May 2017 and May 2020 Board hearings before two of the undersigned Veterans Law Judges (VLJs); transcripts of both hearings are in the record. Because more than one VLJ is participating in the adjudication of the claim, a panel of three VLJs is required to adjudicate the claim. 38 U.S.C. § 7102(a). Accordingly, a third VLJ has been assigned to participate in a panel decision in this case. In December 2020, the appellant was offered the opportunity to testify at another hearing before the third VLJ in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011). The appellant did not respond to that letter. Accordingly, the Board finds that the appellant has waived her right to a third hearing and will proceed with adjudication. In a September 2017 decision, the Board denied the appellant’s claim for service connection for the cause of the Veteran’s death. The appellant appealed the September 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2018 order, the Court granted a Joint Motion for Remand (JMR), filed by the Veteran’s attorney and a representative from VA’s Office of General Counsel. The Court order vacated the Board’s September 2017 denial decision and remanded the case to the Board for action consistent with the JMR. The JMR states that VA must obtain any and all records of the Veteran’s exposure to radiation while on active service, to include the Veteran’s complete service personnel records (SPR) and any outstanding service treatment records (STR). The JMR further states that if new records are obtained verifying that the Veteran had additional in-service exposure to ionizing radiation, a new estimate of total exposure should be requested, as well as the necessary medical opinion pursuant to 38 C.F.R. § 3.311(b)(1)(iii). The JMR also states that VA must verify whether the Veteran should be presumed to have been exposed to herbicide agents while stationed aboard any ships in the waters off Vietnam. The matters are REMANDED for the following action: 1. Obtain any and all records of the Veteran's exposure to radiation while on active service, to include the Veteran's complete personnel record and any outstanding service treatment records, to the extent such records exist. 2. If new records of radiation exposure are obtained that verify that the Veteran had additional in-service exposure to ionizing radiation, a new estimate of total radiation exposure should be requested, as well as a medical opinion pursuant to 38 C.F.R. § 3.311(b)(1)(iii). 3. Determine whether any of the ships on which the Veteran served were within 12 nautical miles of Vietnam while the Veteran was aboard. 4. If exposure to herbicide agents is presumed, obtain a medical opinion regarding whether it is at least as likely as not the Veteran’s death was caused by exposure to herbicide agents. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.