This is a 2012 Veterans Board of Appeals case that a Missile Facilities Tech (non-crew MFT) with NON-Hodgkins Lymphoma. This case may still be in the Veteran Board of Appeals in Washington DC as they were on a fact finding mission as the document claims. Maybe the Veteran will see this and contact me with the outcome of her claim. The VBA was also looking into the fuels as a cause of her illness.
Here is the document;
Citation Nr: 1235915
Decision Date: 10/17/12 Archive Date: 10/23/12
DOCKET NO. 09-11 602 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUE
Entitlement to service connection for non-Hodgkin's lymphoma, to include as due to asbestos and chemical exposure and/or ionizing radiation.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J. M. Kirby, Counsel
INTRODUCTION
The Veteran served on active duty from April 1976 to July 1988.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appeal was subsequently transferred to the RO in Roanoke, Virginia. The Veteran testified before the undersigned at an April 2012 hearing conducted at the Board's offices in Washington, D.C. A transcript of that hearing is associated with the claims file.
The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. VA will notify the Veteran if further action is required.
REMAND
Reasons for Remand: To obtain a dose estimate and refer the matter to the Under Secretary for Benefits.
Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See 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.A. § 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. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).
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. In this case, the Veteran is claiming that she has non-Hodgkin's lymphoma that is related to exposure to ionizing radiation. See 38 C.F.R. § 3.311(b)(2)(xxii).
Specific to the Veteran's claim, 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).
At her April 2012 Board hearing, the Veteran testified that she was exposed to radiation through her occupational duties as a missile maintenance technician working in the Titan II intercontinental ballistic missile (ICBM). During her hearing and in various statements, the Veteran clarified her in-service duties. As supported by two statements from two co-workers, R.G. and F.J.B., the Veteran clarified that she was never a Titan II crew member, but was instead a Titan II maintenance technician. She indicated that she was assigned to maintenance squadron 308th Missile Inspection, Maintenance and Servicing (MIMS) and then 381st Missile Inspection, MIMS. She and her colleagues reported that she worked in an environment contaminated from residual chemical vapors from missile propellant operations such as UDMH and Aerozine.
The evidence of record also contains the Veteran's credible lay statements indicating that during her service in the 1980s, she experienced symptomatology such as swollen glands, itchiness, night sweats, fever, and weight loss. These and other symptoms, for which she was treated during service, continued roughly until 2006 when a needle biopsy resulted in her non-Hodgkin's lymphoma diagnosis.
The Veteran's DD Form 214 for the period April 1976 to May 1979 reflects that her primary specialty number and title was Missile Facilities Specialist, 54150F. Her DD Form 214 for the period November 1984 to July 1988 reflects that her primary specialty numbers and titles were "27770, Space Sys Ops Techn" and "41152D, MSL Facilities Spec/LGM-25 Main."
In response to the RO's request for radiation risk activity, in October 2007, the National Personnel Records Center (NPRC) responded that the standard source documents were not available and other documents were mailed. These documents primarily consisted of the Veteran's performance evaluations. In October 2007, VA received a response indicating that the Veteran's DD Form 1141 was not a matter of record. An October 2007 Memorandum from the Department of the Air Force indicated that the occupational radiation monitoring records in the USAF Master Radiation Exposure Registry (MRER) were queried but no external or internal radiation exposure data for the Veteran was found. An April 2008 Memorandum from the Department of the Air Force to VA indicated that the Veteran did not work directly on missiles, but rather in roles maintaining facilities and support equipment, such that none of the duties performed by the Veteran involved close proximity to radioactive material associated with ICBM weaponry. Accordingly, no dose recommendation was given.
However, it is unclear what information was considered in reaching this conclusion. The Board notes that several of the Veteran's performance reports indicate that she worked in maintenance on Titan II missiles, which included involvement in Titan deactivation and having a vast knowledge of the inner workings of the missile wing. This evidence, as well as the Veteran's credible lay testimony and the lay statements from personnel with whom she worked, contradict the finding that she did not work directly on missiles. Ultimately, after thorough review of the record, the Board finds that there is probative evidence, to include the Veteran's credible lay testimony at her April 2012 Board hearing and various other written statements of record, indicating that she was in close proximity to missiles during the course of her military occupational duties. The question, then, is the amount of ionizing radiation to which the Veteran was exposed, and whether that level of ionizing radiation was sufficient to result in her non-Hodgkin's lymphoma.
To that end, under the special development procedures in § 3.311(a), for claims other than those based upon participation in atmospheric nuclear testing or participation in the American occupation of Japan prior to July 1, 1946, a request will be made for any available records concerning the veteran's exposure to radiation. As noted above, VA has already made requests for the appropriate records. However, the Board finds that as it is unclear whether the Veteran and her colleagues' credible statements as to her in-service duties and performance evaluations have been considered, this information should be forwarded to the Under Secretary for Health, who will prepare a dose estimate. 38 C.F.R. § 3.311(a)(2)(iii).
Additionally, under 38 C.F.R. § 3.311(b), when a Veteran is shown to have been exposed to ionizing radiation, and the Veteran subsequently developed a radiogenic disease, and such disease first became manifest five years or more after exposure to radiation, the claim must be referred to the Under Secretary for Benefits for further consideration. The Under Secretary for Benefits may request an advisory medical opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1). After referring to the factors listed under 38 C.F.R. § 3.311(e), the Under Secretary for Benefits must determine the likelihood that the Veteran's exposure to radiation in service resulted in his radiogenic disease. 38 C.F.R. § 3.311(c).
The Board also observes that the Veteran's claim should be considered on a direct basis. 38 C.F.R. § 3.303(d). As reflected above, the Veteran reported that she began to experience symptomatology such as swollen glands, itchiness, night sweats, fever, and weight loss during service which she contends are evidence of the early stages of non-Hodgkin's lymphoma. The Board concludes that as there is evidence that the Veteran's non-Hodgkin's lymphoma began during her period of service, a remand is necessary for a VA examination. 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following actions:
1. Request any additional available records concerning the Veteran's exposure to radiation not already of record. Review the following records to include: her service treatment records; service personnel records, including her performance reports indicating that she worked in maintenance on Titan II missiles, which included involvement in Titan deactivation and having a vast knowledge of the inner workings of the missile wing; assignment to maintenance squadron 308th Missile Inspection, Maintenance and Servicing (MIMS) and then 381st Missile Inspection, MIMS; DD Form 214 for the period April 1976 to May 1979 reflecting that her primary specialty number and title was Missile Facilities Specialist, 54150F; DD Form 214 for the period November 1984 to July 1988 reflecting that her primary specialty numbers and titles were "27770, Space Sys Ops Techn" and "41152D, MSL Facilities Spec/LGM-25 Main;" and the various materials the Veteran has submitted concerning Titan II missiles.
Additionally, the Veteran and her two co-workers, R.G. and F.J.B., credible statements and testimony that she was never a Titan II crew member, but was instead a Titan II maintenance technician, and that she worked in an environment contaminated from residual chemical vapors from missile propellant operations such as UDMH and Aerozine, must be considered.
2. After the development in #1 is completed, forward all such records to the Under Secretary for Health and ask that a dose estimate be prepared, to the extent feasible, based on available methodologies. 38 C.F.R.
§ 3.311(a)(2)(iii).
3. After the development in #1 and #2 has been completed, refer the matter to the Under Secretary for Benefits for the determination of whether the Veteran's non-Hodgkin's lymphoma is related to in-service ionizing radiation exposure. The Under Secretary of Benefits must also determine whether an expert opinion from the Under Secretary for Health as contemplated in 38 C.F.R.
§ 3.311(c) or referral to an outside consultant for a medical opinion as contemplated by 38 C.F.R. § 3.311(d) is deemed appropriate in this case to ascertain whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not (50 percent or greater probability) that the Veteran's non-Hodgkin's lymphoma resulted from exposure to radiation in service.
4. Schedule the Veteran for a VA examination to evaluate her claim for service connection for non-Hodgkin's lymphoma on a direct basis. A copy of the claims folder and this REMAND must be made available to the examiner in conjunction with the examination. The examination report must include responses to the each of the following items:
Based on a review of the claims folder and the examination findings, including the service treatment records, private treatment reports, and VA treatment reports, the examiner should state a medical opinion as to the likelihood (likely, unlikely, at least as likely as not) that her non-Hodgkin's lymphoma is causally or etiologically related to her symptomatology in military service (to include swollen glands, itchiness, night sweats, fever, and weight loss) from April 1976 to July 1988 as opposed to its being more likely due to some other factor or factors.
(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2011), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review.
5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. All claims 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 Supp. 2011).
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S. HENEKS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), 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) (2011).