Citation Nr: 22018152 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-11 741 DATE: March 28, 2022 REMANDED Entitlement to service connection for multiple myeloma, to include as due to exposure to radiation and herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1971 to February 1973. This claim comes before the Board of Veterans' Appeals (Board) on appeal of a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in July 2018. The appellant, the Veteran's surviving spouse, is a substitute claimant for accrued benefits purposes. See November 2019 Administrative Decision. The appellant has been substituted as the claimant for the purposes of processing the Veteran's pending appeals to completion. 38 U.S.C. § 5121A. In November 2021, the appellant testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Although the Board sincerely regrets any additional delay, additional development is necessary prior to adjudicating this claim. Entitlement to service connection for multiple myeloma, to include as due to exposure to radiation and herbicide agents. The appellant contends that the Veteran's multiple myeloma is a result of exposure to radiation during service while guarding nuclear weapons and facilities. The Veteran's post-service treatment records show that the Veteran was diagnosed and treated for multiple myeloma. As discussed below, multiple myeloma is recognized as a radiogenic disease under 38 C.F.R. § 3.311. The Veteran's service records indicate that he served as a military policy officer and sentry dog handler at the nuclear missile site at Fort Richardson in Alaska. Historical records also indicate that the Veteran's unit was responsible for operating and maintaining the nuclear missile site at Fort Richardson during the Veteran's service. The Veteran reported that he lived on the premises of the missile site and that maintenance of the missiles was performed on site. Considering the above, the Board finds that the Veteran may have been exposed to ionizing radiation during service. 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. § 3.30(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 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, the Veteran's multiple myeloma qualifies as a radiogenic disease. 38 C.F.R. § 3.311 (b)(2)(xv). 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) (2017). 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 suffers from a radiogenic disease and claims exposure to 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 agency of original jurisdiction (AOJ) contacted the Defense Threat Reduction Agency and Army Dosimetry Center to verify the Veteran's radiation exposure, there is nothing in the record indicating that the information collected by the RO was forwarded to the Under Secretary for Health for preparation of a dose estimate. To comply with the regulation, a remand is required. The Board also notes that the development regarding the Veteran's radiation exposure may have been misdirected. The inquiry to the Defense Threat Reduction Agency was related to underground nuclear testing performed at Amchitka, Alaska, during the Veteran's service in Alaska. The inquiry indicated that the Veteran had served at Amchitka. However, the Veteran reported that he did not serve at Amchitka and the Agency report noted that Amchitka was 1,170 nautical miles from Fort Richardson. Rather, the Veteran has claimed exposure to radiation while serving and residing at a missile site at Fort Richardson. Thus, the AOJ should take any appropriate steps to attempt to verify the Veteran's claimed exposure to ionizing radiation at Fort Richardson. Additionally, the Board recognizes that the Veteran was not afforded a VA examination for multiple myeloma. 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). As the Veteran suffered from a radiogenic disease and claimed exposure to ionizing radiation in service, the Board finds that an examination is necessary to address the nature and etiology of the Veteran's multiple myeloma, to include as due to exposure to radiation. These matters are REMANDED for the following action: The agency of original jurisdiction (AOJ) should take any appropriate steps to attempt to verify the Veteran's claimed exposure to ionizing radiation. All attempts and responses should be documented in the claims file. The Board notes that the Veteran has provided additional statements regarding his exposure to radiation during service. Forward the Veteran's personnel records, service and post-service medical records, and other pertinent documents to the VA Under Secretary for Health for a dose estimate based on his service, as security for nuclear weapons and facilities, in accordance with 38 C.F.R. § 3.311 (a)(2)(iii). Following receipt of such dose estimate, forward the Veteran's claim to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c). Following the above, obtain an examination and opinion by an appropriate clinician to determine the nature and etiology of the Veteran's multiple myeloma. Specifically, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's multiple myeloma is related to active service, to include as due to exposure to radiation. (Continued on the next page) If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. After completion of the aforementioned, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted, then the AOJ should provide the appellant with a supplemental statement of the case and afford her the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg 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.