Citation Nr: 21023152 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-26 171 DATE: April 20, 2021 REMANDED Entitlement to service connection for cataracts (claimed as posterior subcapsular cataracts), to include as due to ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A virtual hearing was held before the undersigned Veterans Law Judge (VLJ) in March 2021. A transcript has been associated with the record. Initially, the Board notes that the Veteran sought service connection for posterior subcapsular cataracts; however, the record indicates that he was diagnosed with anterior subcapsular cataracts. The Board has recharacterized the issue as entitlement to service connection for cataracts. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has alleged that he developed cataracts due to exposure to ionizing radiation while working with Nike Hercules missiles during service. Military personnel records confirm that he was assigned as a Hercules missile crewman with 3rd Battalion, 59th Artillery in Chicago in 1967-1968. The Veteran submitted a Radiation Risk Activity Information Sheet and VA sent a letter to the United States Army Dosimetry Center with negative response. The Army Dosimetry Center stated that they were unable to locate any records for the Veteran using the information provided. See February 2015 correspondence. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997). First, there are certain types of cancer that are presumptively service-connected specific to radiation-exposed veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, “radiogenic diseases” may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. “Radiation-risk activity” is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. See 38 C.F.R. § 3.309(b)(i), (ii). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, 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), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. See 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, “radiogenic disease” means a disease that may be induced by ionizing radiation and shall include the following: (i) all forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) non-malignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin’s disease; (xxiii) prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2). Here, cataracts are not one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2). Furthermore, although posterior subcapsular cataracts are included as a “radiogenic disease” under 38 C.F.R. § 3.311(b)(2), anterior subcapsular cataracts are not. The Veteran has acknowledged that he was diagnosed with anterior subcapsular cataracts. See March 2021 Board hearing transcript. Nevertheless, 38 C.F.R. § 3.311(b)(4) provides that, “If a claim is based on a disease other than one of those listed in paragraph (b)(2) of this section, VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease.” Here, the Veteran submitted a June 2016 medical opinion letter from Dr. E.T., MD (initials used to protect privacy), explaining that he was unable to rule out the Veteran’s reported exposure to ionizing radiation as a cause of his advanced anterior subcapsular cataracts. Thus, the Veteran’s claim can be developed under the special development procedures provided in 38 C.F.R. § 3.311. Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. See 38 C.F.R. § 3.311(a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the veteran’s exposure to radiation. These records normally include but may not be limited to the veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran’s radiation dose in service. All such records 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. See 38 C.F.R. § 3.311(a)(2)(iii). As the Veteran submitted competent medical evidence that the claimed condition is a radiogenic disease and claims exposure to ionizing radiation in service, a remand is warranted to obtain and forward all 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. Although the AOJ contacted the U.S. Army Dosimetry Center and attempted to verify the Veteran’s radiation exposure, the Veteran has alleged that the VA’s February 2015 letter contained incorrect information. See November 2017 third-party correspondence; December 2017 notice of disagreement (NOD); March 2021 Board hearing transcript. Therefore, remand is warranted. An opinion, report, or other evidence from the appropriate records depositories is needed to address the issue of whether the Veteran was at least as likely as not exposed to ionizing radiation during active service. 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, including from working on the Nike-Hercules missile system, that should be explained. If there is a positive dose estimate, the remainder of the provisions for claims based on ionizing radiation should be followed. Additionally, the Board recognizes that the Veteran has not been afforded a VA examination for cataracts. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Conduct all necessary development to request any available records concerning the Veteran’s alleged exposure to radiation and develop the claim in accordance with 38 C.F.R. § 3.311. 2. Obtain a VA medical opinion from a qualified Physician to determine the etiology of the Veteran’s cataracts. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cataracts are related to an in-service injury, event, or disease, including any radiation exposure therein. Any opinion offered should be accompanied by the underlying reasons for the conclusion. If the examiner is unable to offer the requested opinion, he or she should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.