Citation Nr: 21039949 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-05 708 DATE: July 1, 2021 REMANDED Service connection for prostate cancer, to include as due to herbicide exposure and/or ionizing radiation exposure, is remanded. Service connection for skin cancer, to include as due to herbicide exposure and/or ionizing radiation exposure, is remanded. Service connection for Alzheimer's dementia, to include as due to herbicide exposure and/or ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1956 to March 1964, to include at Naha Air Base in Okinawa, Japan, in the United States Air Force. The Veteran died in October 2020. The Appellant is the Veteran's surviving spouse. In December 2020, substitution of the Appellant in these matters was granted. 1. Service connection for prostate cancer, to include as due to herbicide exposure and/or ionizing radiation exposure, is remanded. 2. Service connection for skin cancer, to include as due to herbicide exposure and/or ionizing radiation exposure, is remanded. 3. Service connection for Alzheimer's dementia, to include as due to herbicide exposure and/or ionizing radiation exposure, is remanded. The Veteran contended he was exposed to herbicide agents during service at Naha AFB in Okinawa, Japan. The Veteran also claimed that while stationed at Naha AFB in 1959, he was exposure to high doses of radioactive material caused by the accidental launch of a Nike-H missile, which he claimed was complete with a nuclear warhead. See May 2014 Correspondence. Prior to the adjudication of the issues on appeal, the Board concludes additional evidentiary development is necessary. Herbicide Agents Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition, certain chronic diseases, such as malignant tumors, may be presumed to have been incurred during service if the disease manifests to a compensable degree within one year of separation from qualifying military service. 38 U.S.C. §§ 1101, 1112; 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection based on continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be presumed for disabilities which the Secretary of VA determines to be the result of inservice exposure to herbicide agents, such as Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Those disabilities include prostate cancer and skin cancer. Id. Provided it had manifested to a degree of at least 10 percent at any time after service, service connection may be granted. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). However, notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure or other cause with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307. While all Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, the record does not reflect the Veteran served in the Republic of Vietnam during the Vietnam Era, and he is therefore not entitled to the presumption of herbicide exposure. Instead, such exposure must be affirmatively shown. Before these issues were dismissed in November 2020, in a prior remand from November 2018, the Board requested the AOJ verify the Veteran's asserted in-service exposure to herbicide agents and if additional details were needed, to contact the Veteran to request the information. The Board also required the AOJ to issue a Formal Finding outlining the steps taken to assist the Veteran if the information to verify exposure to herbicide agents was insufficient and to notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. Regarding this, a Formal Finding was issued in August 2019, and it states the RO "has given the claimant the opportunity to provide the missing information" but "[w]e have determined that the VA lacks the information the JSRRC requires to verify herbicide exposure in Okinawa[.]" However, the memorandum did not explain what specific information necessary for JSRRC verification was missing or why the information the Veteran provided was insufficient. VA has a duty to assist the Veteran in obtaining records in the custody of a federal agency until such a search becomes futile. See, e.g., 38 C.F.R. § 3.159 (c)(2). Apart from an August 2019 Report of General Information noting that the Veteran was called in regard to the BVA remand, the claims file does not reflect the AOJ made an attempt to obtain any information such as his unit of assignment, the circumstances surrounding his exposure, and the date the claimed exposure occurred prior to issuing the August 2019 Formal Finding. Furthermore, the AOJ offered no explanation for why the information of record was insufficient for a request of any verification. In support of his claim that he was exposed to herbicide agents in Okinawa, the Veteran has submitted extensive documentation and articles regarding Okinawa and the storing and transferring of herbicides. The Veteran's military records reflect service in Okinawa from April 1956 to May 1961. The contention is the Veteran was exposed to herbicides that were used to defoliate the perimeter of the base or airfield. The records reflect the Veteran's military occupational specialty was an aircraft pneudraulic technician, which would have put him close to the perimeter of the air base or airfield. Accordingly, the Board finds the current evidence of record is sufficient for referral to any agency for verification of exposure to herbicide agents. Therefore, a remand is necessary for the AOJ to consider the information provided by the Veteran, and if warranted, submit the matter of alleged exposure to Agent Orange on Okinawa for verification (and if the information is deemed insufficient, the AOJ should advise the Appellant of the specific additional information that is necessary and afford her the opportunity to submit it). Radiation The Board observes service connection for a disability claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in "radiation-exposed veterans" under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d). Second, if the condition at issue is a "radiogenic disease," service connection can be established under 38 C.F.R. § 3.303 (d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311. Third, direct service connection can be established under 38 C.F.R. § 3.303 (d) by showing the disease was incurred during or aggravated by service. See Combee, supra. Presumptive service connection under 38 U.S.C. § 1112 (c) and 38 C.F.R. § 3.309 (d) is warranted for certain diseases, including prostate cancer and skin cancer, present in a "radiation-exposed veteran." A "radiation-exposed veteran" is one who participated in a "radiation-risk activity." A "radiation-risk activity" is defined to mean the onsite participation in a test, or within six months of the test, involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at other certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The Board notes the Veteran is not a "radiation exposed veteran" for purposes of 38 C.F.R. § 3.309 (d)(3) because he did not participate in one of the specifically listed radiation-risk activities such as on-site participation in an atmospheric detonation of a nuclear device, service in Hiroshima or Nagasaki following World War II, or any other specified activity. The Veteran has also not asserted such participation. 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), a 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. "Radiogenic disease" means a disease that may be induced by ionizing radiation and includes certain enumerated diseases. 38 C.F.R. § 3.311 (b)(2). Prostate cancer and skin cancer are radiogenic diseases. 38 C.F.R. § 3.311 (b)(2)(xiv). In all claims in which it is established a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period of time, and it is contended that a disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose. 38 C.F.R. § 3.311 (a)(1). Here, the claims file reflects that the Veteran had a history of prostate cancer and melanoma, which are radiogenic diseases, and he contended these radiogenic diseases were a result of exposure to ionizing radiation during active service overseas. Furthermore, given his assertion he wore a Geiger counter around his neck and took iodine pills after the accidental launch of a Nike-H missile during active service, the Board finds a dose assessment is necessary prior to adjudication of the claim. Section 3.311 details the procedures for procuring dose estimates based on claimed exposure. 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. 38 C.F.R. § 3.311 (a)(2). In all other claims involving radiation exposure (such as this claim), Section 3.311(a) requires 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 treatment records, and other records that may contain information pertaining to the Veteran's radiation dose in service. All such records will be forwarded to the VA 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). On remand, the AOJ should complete the development required by 38 C.F.R. § 3.311 (a)(2)(iii), which instructs records should 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. Here, the Veteran's service personnel and treatment records have been obtained, but they do not include any official exposure record. In a May 2014 correspondence, the Veteran recalled an incident at Naha AFB in Okinawa in which he asserted that he was exposed to high doses of radioactive material caused by the accidental launch of a Nike-H missile. He recalled witnessing the accidental launch of the missile, being in close proximity to it, feeling heat from it, and after the event, he had to wear a Geiger counter around his neck, he had to take iodine pills, and the airbase went on lockdown. In light of the foregoing, the Board finds, on remand, the AOJ should forward the records of the Veteran's alleged in-service radiation exposure to the Under Secretary for Health for preparation of a dose estimate. Once the Undersecretary for Health provides a radiation dose estimate for the Veteran, the RO must then determine whether this claim should be sent to the Undersecretary for Benefits for additional review. See generally 38 C.F.R. §§ 3.311 (a)(2)(iii), (b), and (c). The matters are REMANDED for the following action: 1. The RO is asked to obtain any available records from the Department of Defense, National Archives and Records Administration, United States Armed Services Center for Research of unit Records and/or other appropriate sources regarding: (a.) The storage and dissemination of Agent Orange or other herbicide agents during his active service at Naha AFB in Okinawa, Japan, from April 1956 to May 1961 and (b.) The Veteran's report of Naha AFB going on lockdown in 1959 after the accidental launch of a Nike-H missile and being exposed to radioactive material, which required the issuance of Geiger counters and iodine pills. 2. Forward the Veteran's personnel records and other pertinent documents, along with a summary of the claimed circumstances of the Veteran's radiation exposure, to the VA Under Secretary for Health for a radiation dose estimate, in accordance with 38 C.F.R. § 3.311 (a)(2)(iii). See e.g. Airman Military Record (noting foreign service from April 1956 through May 1961 in Okinawa, Japan) and military personnel records (noting a military occupational specialty of aircraft pneudraulic technician). The summary of the Veteran's contentions regarding radiation exposure should reflect full consideration of the Veteran's statements. See e.g., May 2014 correspondence. A copy of any letter sent to the Undersecretary for Health requesting a radiation dose estimate for the Veteran, and any reply, should be included in the claims file. 3. After the Undersecretary for Health responds with a radiation dose estimate for the Veteran, the AOJ should review that estimate and determine whether any additional development of this claim is required, to include whether it should be sent to the Undersecretary for Benefits. A copy of any determination that additional development is required, to include any letter sent to the Undersecretary for Benefits requesting additional review of this claim, should be included in the claims file. 4. After the development has been accomplished, and only if the development confirms in-service exposure to herbicides and/or ionizing radiation, obtain a VA opinion to determine if there is a connection between any exposure to herbicides and/or ionizing radiation and Alzheimer's dementia. The record must be reviewed by the examiner. Is it as likely as not that Alzheimer's dementia was caused by any injury or disease in service, including any exposure to herbicide agents and/or ionizing radiation during his service in in Okinawa from April 1956 through May 1961? The examiner should address how this statement is or is not supported by the record and/or by current medical and scientific knowledge. The examiner is advised that service connection for a disease can be established on a direct basis as related to Agent Orange and/or ionizing radiation and is not precluded solely because the disease is not listed as a presumptive condition associated with herbicide exposure or ionizing radiation. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must explain why this is so. Christopher J. O'Donnell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.