Citation Nr: 22017547 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-22 950 DATE: March 25, 2022 REMANDED Entitlement to service connection for chronic myelogenous leukemia (CML) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army as an administrative specialist from July 1985 to February 1992. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2012 rating decision by the Regional Office (RO). In January 2019, the Board remanded the claim for further development. This matter is now returned to the Board for further appellate review. Entitlement to service connection for CML The Veteran claims her CML was caused by her Army service in the Persian Gulf. She reports she is unsure where she was stationed in the Persian Gulf, but her service personnel records show she was on temporary duty (TDY) in Saudi Arabia from November 2, 1990 to January 11, 1991. As explained in greater detail in the January 2019 Board remand, the Veteran asserts that her CML, which was diagnosed in 2011, was caused by the following during her TDY in the Persian Gulf: a) Immunizations; b) Preventive oral medication; c) Smoke from burn pits or burning oil well fires, including alleged benzene exposure; d) Unspecified chemical exposure when she had to don a nuclear biological chemical (NBC) mask; and e) Radiation exposure from a white powdery substance inside Conex shipping boxes of M-16 and 0.50 caliber munitions she handed out that she believes spilled over from other large munitions in the same Conex containers. See Correspondence, November 2017 and November 2021; Board hearing transcript at p.5, 16-18, and 21. The Board notes that "all forms of leukemia except chronic lymphatic leukemia" constitute listed "radiogenic diseases" under 38 C.F.R. § 3.311, such that those development procedures are applicable where ionizing radiation exposure is asserted. In January 2019, the Board remanded the claim so that certain development could be performed, including a request for radiation dose information from the Defense Threat Reduction Agency (DTRA), and if necessary, from the Proponency Office for Preventative Medicine or the U.S. Army Defense Ammunition Center. The Board noted that of interest was the likelihood of any radioactive substance to be present in ammunition storage "Conex" containers, and if so, whether it presents significant radiation exposure to a handler. Subsequently, in May 2020, the RO requested radiation dose information from the DTRA. In July 2020, the DTRA responded that exposure to radiation from sources other than participation in U.S. Nuclear Tests and the occupation of Hiroshima are beyond the purview of the DTRA office. The DTRA suggested a request be made to the office responsible for maintaining occupational dosimetry data for Army personnel the U.S. Army Medical Command. In August 2020, the RO requested "radiation risk activity" information from the U.S. Army Medical Command. In September 2021, the U.S. Army Medical Command responded that their office facilitates requests for records of occupational exposure to ionizing radiation (e.g., DD Form 1141) and reconstructions of occupational doses of radiation under 38 C.F.R. § 3.311, and invited the RO to resubmit the request with certain requisite information. No new request, however, was made by the RO. Therefore, the Board finds the claim should be remanded so that a new request may be made to the U.S. Army Medical Command for records of any occupational exposure to ionizing radiation (e.g., DD Form 1141) and for reconstructions of occupational doses of radiation under 38 C.F.R. § 3.311. Also, in August 2020, the RO sent a request for participation in "radiation risk activity" information to the Proponency Office for Preventative Medicine, but the requested was returned as undeliverable in September 2020. A web search, however, indicates the mailing address is no longer correct. The Board acknowledges, however, that the DTRA did not suggest the Proponency Office as an alternate source to request records. Rather, here, the DTRA suggested a request be made to the U.S. Army Medical Command. An August 2020 request for participation in "radiation risk activity" information was also sent to the U.S. Army Defense Ammunition Center. By way of background, in November 2017, the Veteran submitted excerpts from a publication entitled Hazard Classification of U.S. Military Explosives & Munitions, published by the U.S. Army Defense Ammunition Center/U.S. Army Technical Center for Explosives Safety (April 3, 2017). The excerpts included general information about the joint hazard classification system (JHCS), an incomplete chart involving storage mixing compatibility, including in shipping containers, and a mailing address for questions. An October 2020 response was received, however, from the "personnel office" of the McAlester Army Ammunition Plant, JMMC-PT (Joint Military Medical Command) that they did not have access to the requested information. As it appears that the request was acted upon by the wrong office, the Board finds that, on remand, another request for radiation exposure information, including alleged depleted uranium exposure, should be made to the U.S. Army Defense Ammunition Center. The RO should explain that the request should be directed to persons involved with the joint hazard classification system (JHCS) and explosives and munitions storage/shipping compatibility. A request for radiation dose information should also be requested from: US ARMY Dosimetry Center ATTN: AMSAM-TMD-SD (Courtney Smith) Building 5417 Redstone Arsenal, AL 35898 See M21-1, VIII.iii.4.B.3.f. Next, on remand, the claim should be forwarded to the Under Secretary for Health for preparation of a radiation dose estimate and perform all other requisite development under 38 C.F.R. § 3.311. The prior January 2019 Board remand also directed that the RO request from all appropriate sources information regarding the Veteran's contended exposure in the Southwest Asia Theater to chemical agents, including but not necessarily limited to from the Office of the Special Assistant to the Secretary of Defense for Gulf War Illnesses, Medical Readiness, and Military Deployments. It appears that on December 15, 2020, the RO received a response from that office in the form of two reports one for the years November 1996 to November 1997, and one for November 1997 to November 1998, entitled Gulf War Illnesses, by the Office of the Special Assistant to the Deputy Secretary of Defense. One report alludes to three possible chemical agent incidents very generally in "early 1991," but provides not details, and notes that chemical weapons containing sarin were destroyed in an open pit in March 1991 near Khamisiyah, Iraq, although the Veteran only served in Saudi Arabia from November 1990 to January 1991. See Report (1997-1998) at p.16-17. The report also mentions studies in progress to address exposure of units to depleted uranium, and the report references RAND, a federally funded research and development center commissioned to prepare reviews on topics including depleted uranium, immunizations, chemical and biological warfare agents, oil well fire fallout, and pyridostigmine bromide. The Board finds that the response in the form of these two reports was not specific enough to this Veteran's case, and that on remand, a follow up request should be made to the Office of the Special Assistant to the Secretary of Defense for Gulf War Illnesses, Medical Readiness, and Military Deployments, regarding whether this specific Veteran in this case had any chemical agent exposure during her service in Saudi Arabia between November 1990 and January 1991. The Office should also be asked to provide information regarding depleted uranium, immunizations, chemical and biological warfare agents, oil well fire fallout, and pyridostigmine bromide, as it may pertain to this specific Veteran's service in Saudi Arabia which ended prior to the start of actual combat action on January 17, 1991. The January 2019 Board remand next directed the RO to obtain a new VA medical opinion to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran's CML is related to environmental exposures in the Southwest Asia, including specifically burn pits. A September 2021 VA medical opinion was obtained, but the examiner did not specifically address the Veteran's reported burn pit exposure. The Board also asked that the examiner address the Veteran's assertion in November 2017 that the Philadelphia chromosome mutation does not occur at birth, and that CML takes many years to develop. The VA examiner opined "the patient also had her bone marrow positive for Philadelphia chromosome, which indicates this is more likely due to genetic mutation" without any further rationale. Therefore, on remand, a new VA examination should be performed to address whether the Veteran's CML was caused by exposure to burn pits, or the Veteran's reported duties of burning human waste, in Saudi Arabia, and to address with a more detailed rationale the Veteran's contention that the Philadelphia chromosome mutation does not occur at birth and takes many years to develop. The matters are REMANDED for the following action: 1. Ensure that this claim is processed by the Jackson Regional Office under the central processing procedures for radiogenic diseases listed in 38 C.F.R. § 3.311. See M21-1, VIII.iii.4.B.2.a. 2. Respond to the September 2021 correspondence from the U.S. Army Medical Command by submitting to a new request to for records of the Veteran's occupational exposure to ionizing radiation (e.g., DD Form 1141) and for reconstructions of occupational doses of radiation under 38 C.F.R. § 3.311. Provide the necessary details requested by the September 2021 correspondence (unit, etc.). Explain that of interest is the likelihood of any radioactive substance, including depleted uranium, to be present in ammunition storage "Conex" containers during the Veteran's temporary duty in Saudi Arabia between November 1990 and January 1991, and if so, whether it presents significant radiation exposure to a handler, a soldier with the 86th Evacuation Hospital. 3. Submit a new request for radiation dose information, to the U.S. Army Defense Ammunition Center at the mailing address provided on page 3 of the publication. The RO should explain that the request should be directed to persons involved with the Joint Hazard Classification System (JHCS), and involved with explosives and munitions storage/shipping compatibility. The mailing address is: U.S. Army Defense Ammunition Center 1C Tree Road, Building 35 McAlester, OK 74501-9053 An email request may be attempted at: usarmy.mcalester.usamc.list.dac-hc@mail.mil See "Personnel Record," received November 7, 2017 at p.3. Explain that of interest is the likelihood of any radioactive substance, including depleted uranium, to be present in ammunition storage "Conex" containers during the Veteran's temporary duty in Saudi Arabia between November 1990 and January 1991, and if so, whether it presents significant radiation exposure to a handler who reported handling rifle and 0.50 caliber machine gun ammunition as a soldier with the 86th Evacuation Hospital. 4. Submit a new request for radiation dose information, to the U.S. Army Dosimetry Center at the following address: U.S. Army Dosimetry Center ATTN: AMSAM-TMD-SD (Courtney Smith) Building 5417 Redstone Arsenal, AL 35898 See M21-1, VIII.iii.4.B.3.f. Explain that of interest is the likelihood of any radioactive substance, including depleted uranium, to be present in ammunition storage "Conex" containers during the Veteran's temporary duty in Saudi Arabia between November 1990 and January 1991, and if so, whether it presents significant radiation exposure to a handler, a soldier with the 86th Evacuation Hospital. 5. After the above development in paragraphs (1)-(3) has been completed, forward the claim to the Under Secretary for Health for preparation of a radiation dose estimate, and perform all other requisite development under 38 C.F.R. § 3.311. 6. Send a follow up request for information - specific to this Veteran or her unit - to the Office of the Special Assistant to the Secretary of Defense for Gulf War Illnesses, Medical Readiness, and Military Deployments, regarding whether the Veteran had any chemical agent exposure during her service in Saudi Arabia between November 1990 and January 1991. Although two reports were provided in December 2020 (see DPRIS Response, December 15, 2020), these reports did not include any information specific to this Veteran and her service in Saudi Arabia between November 1990 and January 1991. Also ask the Office to provide information - specific to this Veteran or her unit - regarding any depleted uranium, immunizations, chemical and biological warfare agents, oil well fire fallout, and pyridostigmine bromide, that may pertain to this specific Veteran's service in Saudi Arabia. If unsuccessful, request information from the Army Public Health Center, 8252 Blackhawk Rd, Aberdeen Proving Ground, MD 21010-5403 on the contended exposures to the Veteran, a soldier with the 86th Evacuation Hospital in Saudi Arabia between November 2, 1990 and January 11, 1991 including burn pits, oil well fires, nerve agents, prophylactic medications and immunizations, and depleted uranium dust in ammunition CONEX boxes. 7. After the above development in paragraphs (1)-(5) has been completed, obtain a new VA medical opinion based on a review of the entire claims file, including this remand, to clarify whether it is at least as likely as not (50 percent or greater probability) that the Veteran's CML is related to environmental exposures in the Southwest Asia, including specifically burn pits. If exposure to radiation or depleted uranium, chemical warfare agents, or oil well fires is verified by the AOJ, also ask the VA examiner to address whether the Veteran's CML is caused by such radiation or depleted uranium, chemical warfare agents, or oil well fires and benzene. If exposure to oil well fires is confirmed, please ask the VA examiner to note a review of the journal articles cited by the Veteran in her November 2017 correspondence regarding benzene (note she is a licensed practical nurse): Leukemia After Exposure to Benzene: Temporal Trends and Implications for Standards, American Journal of Industrial Medicine 38:1-7(2000); Effects of Benzene on Human Hematopoiesis, The Open Hematology Journal, 2008, 87-102. If exposure to depleted uranium is verified, please ask the VA examiner to note a review of the article submitted on February 17, 2021, from the VA Public Health website: Depleted Uranium (DU), Information for Veterans and their Families Also ask the VA examiner to address the Veteran's argument that the Philadelphia chromosome mutation does not occur at birth, and that CML takes many years to develop. See Correspondence, November 2017. Finally, ask the VA examiner to review and address the opinion from Dr. M.R. received on February 17, 2021. In that regard, explain to the VA examiner whether exposure to depleted uranium has been verified, and whether service in Iraq (outside of Saudi Arabia) has been verified. Any opinion must be accompanied by a complete rationale. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.