Citation Nr: A26031991 Decision Date: 04/07/26 Archive Date: 04/07/26 DOCKET NO. 250405-532783 DATE: April 7, 2026 REMANDED Entitlement to service connection for leukemia (T-cell large granular lymphocytic leukemia), to include as due to exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served in active service from February 1980 to March 1986 in the United States Army. The rating decision on appeal was issued in March 2025 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In November 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a November 2024 decision. In March 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior November 2024 decision. Therefore, the Board may only consider the evidence of record at the time of the March 2024 decision. In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the November 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of service connection for leukemia, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for leukemia (T-cell large granular lymphocytic leukemia), to include as due to exposure to ionizing radiation, is remanded. The Veteran contends entitlement to service connection for leukemia due to exposure to ionizing radiation. The Veteran advances he was exposed to ionizing radiation by virtue of his military occupational specialty (MOS) as a 76P Material Control and Accounting Specialist responsible for transporting calibrating equipment that contained radioactive material. See November 2023 VA Form 21-526EZ, Fully Developed Claim; see also, November 2023 Veteran's Correspondence. Service connection for conditions claimed to be due to exposure to ionizing radiation in-service can be established in any of three different ways. Davis v. Brown, 10 Vet. App. 209 (1997); Rucker v. Brown, 10 Vet. App. 67 (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, 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 if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. 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. 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. 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) or does not have 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 has 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 includes: (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). Colon cancer must become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). 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. 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 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. 38 C.F.R. § 3.311(a)(2)(iii). Section 3.311(a) calls for the development of a dose assessment where it is established that a radiogenic disease became manifest after service, was not manifested to a compensable degree within any applicable presumptive period specified in either § 3.307 or § 3.309, and it is contended that it resulted from exposure to ionizing radiation in service. If the three requirements of 38 C.F.R. § 3.311(b) are met, the claim must be referred to the Under Secretary for Health (USH) for further consideration. With regard to leukemia, the disease may become manifest at any time after exposure. 38 C.F.R. § 3.311(b)(5)(ii). The Veteran was diagnosed with T-cell large granular lymphocytic leukemia in October 2022. Therefore, the remaining question is whether the Veteran was exposed to radiation during his military service or if his disability is otherwise related to his military service. While the Veteran is not advancing a claim under 38 C.F.R. § 3.311(a)(1) or (2), dose data was nonetheless requested from the Department of Defense. The U.S. Army Dosimetry Center was unable to locate any records for the Veteran documenting exposure to ionizing radiation. See October 2024 Army Dosimetry Center Letter. The Board finds that the case must be remanded as the AOJ did not forward the case to the Under Secretary of Health for preparation of a dose estimate, pursuant to 38 C.F.R. § 3.311(a)(2)(iii). See 38 C.F.R. § 20.802(a). The requirement regarding the preparation of a dose assessment by VA is unique to claims brought under section 3.311(a)(2)(iii). VA may rely upon dose data provided by the Department of Defense in cases brought under sections 3.311(a)(2)(i) or (a)(2)(ii). The responsibility for dose estimates preparation by VA in claims brought under section 3.311(a)(2)(iii) is clear from the regulation and must be based upon all available information. As this development has not been undertaken, remand is necessary. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any additional service records that may further document the Veteran's exposure to ionizing radiation, to include obtaining the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141). 2. All relevant requests and responses must be documented in the claims file. If any records are unavailable the Veteran must be notified of the AOJ's inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 3. After any necessary development above concerning the extent of Veteran's exposure to radiation is completed, forward the Veteran's record to the VA Under Secretary for Health, pursuant to 38 C.F.R. § 3.311 (a)(2)(iii), for the preparation of a dose estimate. (Continued on the next page) ? 4. The issue should then be further developed under 38 C.F.R. § 3.311(c) as provided under § 3.311(b)(1). In any review of the claim under 38 C.F.R. § 3.311(c), any opinion from the VA Under Secretary for Benefits, or designee of the VA Under Secretary for Benefits, of no reasonable possibility that the disability was caused by exposure to radiation in service must be accompanied by a thorough explanation of rationale for such conclusion. In accordance with the guidance in Stone v. Gober, 14 Vet. App. 116 (2000), such opinion need not explicitly discuss each 38 C.F.R. § 3.311(e) factor but it must be more than a cursory explanation and a mere restatement of any opinion from the office of the VA Under Secretary for Health. 5. Finally, conduct any additional development that may be warranted (to include additional VA medical opinions), as a consequence of the actions taken in the preceding paragraphs, and then readjudicate the appeal. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Faul, Frank J. 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.