When will the Veterans Board of Appeals ever get the truth from the "Under Secretary for Health" about the possible ionizing radiation from the Titan II Nuclear Missile Warhead? How long do we have to wait for a Truthful report? It would appear this Judge wants some answers also. Quoting from the case:
"Further attempts should also be made to verify whether the appellant was exposed to ionizing radiation. A January 2011 formal finding indicates that two requests for a DD-1141 Record of Occupational Exposure to Ionizing Radiation were made to the National Personnel Records Center but both proved unsuccessful. No attempt has yet been made to contact the bases directly to ascertain whether there were any incidents involving nuclear warheads that might have exposed a missile electrician to ionizing radiation. Further, no attempt has been made to investigate whether the Air Force ever studied whether the 1960's missiles at issue evidenced any type of radiation exposure leakage."
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Citation Nr: 1514613
Decision Date: 04/06/15 Archive Date: 04/21/15
DOCKET NO. 11-07 441
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for myelodysplastic syndrome, to include as due to ionizing radiation.
2. Entitlement to service connection for thyroid cancer, to include as due to ionizing radiation.
REPRESENTATION
Appellant represented by: Florida Department of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Matthew Schlickenmaier, Associate Counsel
INTRODUCTION
The Veteran had active duty service from November 1962 to August 1966.
This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a July 2009 rating decision issued by the Regional Office (RO) in St. Petersburg, Florida.
In February 2015, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing is of record.
This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran claims that his current thyroid cancer and myelodysplastic syndrome are the result of exposure to ionizing radiation while in service. Specifically, the Veteran contends that working as a missile electrician on Atlas F and Titan II missiles - which allegedly were "dirty bombs" and therefore emitted radiation even at rest, that caused his current disorders. His DD-214 and service personnel records confirm that he served in this capacity at Little Rock Air Force Base and Lincoln Air Force Base. Further development is required.
First, any outstanding treatment records relating to myelodysplastic syndrome should be obtained. "Myelodysplastic syndrome" is defined as a group of bone marrow disorders of varying duration which usually precede the development of leukemia. Dorland's Illustrated Medical Dictionary 1238 (31st ed. 2007). While there is currently no clinical evidence that the Veteran suffers from leukemia, the most recent medical records are dated from 2011. There is otherwise little basis to find that the appellant suffers from a radiogenic disease as contemplated by 38 C.F.R. § 3.311. His thyroid cancer also onset significantly more than five years after the alleged exposure and, to the extent myelodysplastic syndrome may be considered a bone cancer, it appears to have onset more than 30 years such exposure. Although VA will consider competent scientific or medical evidence asserting that the claimed condition is a radiogenic disease, the two positive nexus opinions from the appellant's private physicians presuppose exposure to ionizing radiation - a fact that has not yet been established. If a current radiogenic disease is subsequently established, additional development in the form of a dose estimate is required. See 38 C.F.R. § 3.311(a)(2)(iii).
Further attempts should also be made to verify whether the appellant was exposed to ionizing radiation. A January 2011 formal finding indicates that two requests for a DD-1141 Record of Occupational Exposure to Ionizing Radiation were made to the National Personnel Records Center but both proved unsuccessful. No attempt has yet been made to contact the bases directly to ascertain whether there were any incidents involving nuclear warheads that might have exposed a missile electrician to ionizing radiation. Further, no attempt has been made to investigate whether the Air Force ever studied whether the 1960's missiles at issue evidenced any type of radiation exposure leakage.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should contact the Little Rock Air Force Base and Lincoln Air Force Base - or the appropriate repository of records for Lincoln Air Force Base - and request any relevant information that could establish that the appellant was exposed to ionizing radiation during his periods of service. Information relating to incidents involving nuclear warheads, to include but not limited to, leaks, malfunctions and explosions should be considered. It should also be determined whether the Air Force has any evidence of any radiation being emitted from the rockets used at these bases, to include the ones noted above by the Veteran. If no studies or information is available, that should specifically determined. If there is evidence of emitted radiation from these missiles, even at rest, that should specifically determined.
2. The AOJ should also contact the Veteran to identify any pertinent private or VA treatment records that might be outstanding, in particular any relating to myelodysplastic syndrome. Associate such records with the claims file. All efforts to obtain additional evidence must be documented in the record.
3. If the above results in evidence sufficient to establish the existence of a radiogenic disease as contemplated by 38 C.F.R. § 3.311, then a dose assessment should be obtained. Forward the Veteran's records concerning his radiation exposure, including any service records, statements and testimony regarding radiation exposure, and any other information obtained from the above request to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. All attempts should be made to determine what radiation exposure the Veteran may have received during his work as a missile electrician. If a specific estimate cannot be made, a range of possible doses should be provided. If more information is required regarding specifics of the Veteran's alleged exposure, he should be contacted and asked to provide the information.
4. If the above-requested development results in a positive dose estimate, refer the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c).
5. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case and an appropriate period of time for response before this case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).