A MK45 nuclear warhead is only 11 kilotons where as the Titan II W53 nuclear warhead is over 9 megatons (9,000 kilotons). Shielding inside the warhead should not have been any different between the two warheads if personal safety was a concern, in my opinion. In other words the design of the radiation shielding (thickness or type of material) should have used the same design criteria in either case adjusting for the amount of safe radiation emitted through the shielding.
This is and should be very concerning to Titan II veterans who worked in the missile launch duct. The USAF needs to disclose all (not just the good ones) the actual radiation readings from the dismantling of the W53 Titan II warheads at Oak Ridge, TN. If you have a VA claim pending for ionizing radiation request the VA retrieve those dismantling documents.
The credentials of this Navel Physician Officer can not be refuted by the VA.
"She concluded by noting that, in her professional opinion as a former naval commander physician trained in undersea medicine, the recorded dosimeter record of the Veteran is not an accurate ionizing radiation exposure record for this former Navy diver/submariner. The ionizing radiation received by the Veteran while sleeping directly over a MK45 torpedo would be estimated to be at least two times the recorded dose derived from official military records.
In a separate letter, it was noted that this physician completed 20 years of military service in 1991 leaving with the rank of Commander/USN, and her assignments included Submarine Base Groton, Connecticut. Besides board certification in Internal Medicine, her training included Undersea Medicine with aspects of radiation science. "
http://www.va.gov/vetapp12/files1/1203082.txt
Citation Nr: 1203082
Decision Date: 01/27/12 Archive Date: 02/07/12
DOCKET NO. 09-27 719 ) DATE
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa
THE ISSUES
1. Entitlement to service connection for B-cell lymphoma.
2. Entitlement to service connection for peripheral neuropathy of the feet, to include as secondary to B-cell lymphoma.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
WITNESSES AT HEARING ON APPEAL
Veteran and Observer
ATTORNEY FOR THE BOARD
L. Durham, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1970 to September 1978.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of a VA RO, which denied the Veteran's service connection claims listed herein.
These issues were remanded by the Board in April 2011 for further development.
In August 2011, a videoconference hearing was held before the undersigned Veterans Law Judge at Des Moines, Iowa, RO. A transcript of the hearing is of record.
The Board notes that additional medical evidence was associated with the claims file after the statement of the case (SOC) was issued. However, the Veteran indicated at the August 2011 hearing that he wished to waive initial review of this evidence by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304. Additionally, as these issues are being remanded for further development, the Board finds no prejudice to the Veteran in proceeding to adjudicate these claims as done below.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Veteran is seeking entitlement to service connection for B-cell lymphoma and peripheral neuropathy of the feet, to include as secondary to B-cell lymphoma. Upon review of the claims file, the Board finds that further development is required to adjudicate these claims.
The Veteran has asserted throughout the course of his appeal that he was exposed to radiation during active duty service. Specifically, the Veteran has asserted that he served on two nuclear submarines during service. The Veteran claims that his bunk was 4 feet above the MK45 torpedo. The Veteran also claims that, at one point, there was an incident on one patrol where tritium (radioactive) gas from a nuclear warhead was released into the atmosphere of the torpedo room, which was isolated from the rest of the boat. In 1977, the shipyard was conducting x-rays of welds on the submarine's pressure hull using a radioactive material. The security perimeter was not set up correctly and the Veteran came upon the radioactive material, which was remotely activated, moving the radioactive isotope from its lead container, exposing him to radioactive rays. The Veteran's duties also included daily cleanup throughout the boat, removing debris, and standing fire watch, without a mask. The Veteran asserted that, in 1978, the Navy came out with a directive to remove all crew berthing from missile and torpedo compartments because of radiation exposure emanating from the nuclear warheads. The Veteran claims his B-cell lymphoma was caused by in-service radiation exposure during active duty and his peripheral neuropathy was caused by the medical treatment for his B-cell lymphoma.
A review of the service treatment records reveals no complaints, treatment, or diagnoses of B-cell lymphoma or peripheral neuropathy. The service treatment records do reflect that the Veteran was exposed to radiation during service.
The Veteran's DD-214 Form reflects that his primary military specialty title was Ballistic Missile Submarine Launch Systems Technician.
The Board notes that the current medical evidence of record reflects that the Veteran has been diagnosed with and treated for B-cell lymphoma. He has also been diagnosed with peripheral neuropathy.
For all claims where radiation exposure during service is claimed and a radiogenic disease is diagnosed after service, 38 C.F.R. § 3.311 (2011) compels the forwarding of all records pertaining to the Veteran's radiation exposure in service to the Under Secretary for Health. The Under Secretary of Health is responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). After it is determined by the dose assessment that the Veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b) (2011).
When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1) (2011). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311(c)(1) (2011). This section provides two options:
(i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the Veteran's disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section.
(ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1) (2011).
In this case, the claims file contains a September 2008 memorandum from the Chief of Public Health and Environmental Hazards Officer. This memorandum noted that the Veterans DD Form 1141 indicated that he received an accumulated dose of 0.020 rem from January 1, 1972, to September 9, 1978. It was determined in this memorandum, however, that it is unlikely that the Veteran's B-cell lymphoma can be attributed to radiation exposure while in military service.
The claims file also contains an October 2008 advisory opinion from the Director of Compensation and Pension Service. This opinion notes that a medical opinion from the Under Secretary for Health was received that advises that it is unlikely that the Veteran's lymphoma resulted from his exposure to ionizing radiation in service. This opinion further notes that the Veteran's service personnel file contains a Record of Occupation Exposure to Ionizing Radiation (DD Form 1141). The Veteran, whose military occupational specialties were SSBN Launcher Systems Technician and Scuba Diver, served aboard the USS Robert E. Lee and the USS Daniel Webster, where his exposure to ionizing radiation was recorded by film badge from January 1972 to September 1978. He received an initial dose of 0.007 rem during the November/December 1977 period. He received his last dose of in-service radiation of 0.005 rem during the July through September 1978 time frame. The DD Form 1141 disclosed that he received an accumulated total lifetime does of 0.020 rem during service. The Veteran has provided a statement that he slept in the torpedo room aboard the submarine in close proximity to nuclear-armed torpedoes. His duties include arming and disarming the torpedo and performing underwater security and integrity checks of the submarine's hull as a diver. He also described an incident where radioactive tritium gas was leaked into the torpedo room. The Veteran's account is corroborated with a lay statement submitted by an individual that served with the Veteran aboard the same submarine. Diffuse, large B-cell lymphoma was verified by biopsy in July 2007. The Director of Compensation and Pension Service noted a November 2007 private opinion from Dr. A.S, which indicated that it is more likely than not that the Veteran's radiation and tritium exposure could be implicated in the lymphoma diagnosis. However, the Under Secretary for Health noted that Dr. A.S.'s opinion was not based upon the radiation dosage the Veteran received. The Under Secretary for Health indicated that the Interactive Radioepidemiological Program of the National Institute for Occupational Safety and Health was utilized to estimate the likelihood that exposure to ionizing radiation was responsible for the Veteran's lymphoma, using the dose estimate of 0.021 rem. To give the maximum probability of causation, this radiation was regarded as having been received in a single acute exposure in 1976, the first year of documented nonzero radiation exposure by the Veteran. The program calculated a 99th percentile value for the probability of causation of 0.02 percent. The Director of Compensation and Pension Service indicated that, as a result of the medical opinion, and following review of the evidence in its entirety, it is their opinion that there is no reasonable possibility that the Veteran's lymphoma resulted from exposure to radiation in service.
However, the claims file also contains private medical evidence on this matter as well. As noted, the claims file contain a November 2007 private medical opinion from A.S., D.O., who treated the Veteran for primary mediastinal B-cell lymphoma. This D.O. indicated that, given the detail of the Veteran's exposure, both to radioactive nuclear radiation, as well as tritium exposure, it is more likely than not that this could be implicated in the cause of his lymphoma diagnosis.
Additionally, the claims file contains several statements from a Dr. P.K. Most recently, in September 2011, this physician submitted a statement indicating that, in her opinion, the torpedo men who served aboard nuclear submarines prior to 1978 who developed cancer or lymphoma should be rated as having service connection. She noted that, prior to 1978, these men were berthed directly over nuclear armed torpedoes, such as the MK45 nuclear warhead and did not wear a dosimeter when sleeping. This sleeping arrangement was halted. The physician stated that, in her opinion, the VA radiation dose recorded for the Veteran is not an accurate reflection of his ionizing radiation exposure. She concluded by noting that, in her professional opinion as a former naval commander physician trained in undersea medicine, the recorded dosimeter record of the Veteran is not an accurate ionizing radiation exposure record for this former Navy diver/submariner. The ionizing radiation received by the Veteran while sleeping directly over a MK45 torpedo would be estimated to be at least two times the recorded dose derived from official military records.
In a separate letter, it was noted that this physician completed 20 years of military service in 1991 leaving with the rank of Commander/USN, and her assignments included Submarine Base Groton, Connecticut. Besides board certification in Internal Medicine, her training included Undersea Medicine with aspects of radiation science.
It is clear that the file contains differing evidence regarding the radiation dose estimate.
When necessary to reconcile a material difference between an estimate of a dose, from a credible source, submitted by or on behalf of a claimant, and dose data derived from official military records, the estimates and supporting documentation shall be referred to an independent expert, selected by the Director of the National Institutes of Health, who shall prepare a separate radiation dose estimate for consideration in adjudication of the claim. 38 C.F.R. § 3.311(a)(3). For purposes of this paragraph , the difference between the claimant's estimate and dose data derived from official military records shall ordinarily be considered material if one estimate is at least double the other estimate. 38 C.F.R. § 3.311(a)(3)(i). A dose estimate shall be considered from a "credible source" if prepared by a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology and if based on analysis of the facts and circumstances of the particular claim. 38 C.F.R. § 3.311(a)(3)(ii).
Therefore, as Dr. P.K. indicated in her September 2011 statement that the ionizing radiation received by the Veteran while sleeping directly over a MK45 torpedo would be estimated to be at least two times the recorded dose derived from official military records, and this physician appears to be a credible source based on her training in Undersea Medicine with aspects of radiation science, the Board finds that the issue of entitlement to service connection for B-cell lymphoma must be remanded so that the estimates and supporting documentation may be referred to an independent expert, selected by the Director of the National Institutes of Health, who shall prepare a separate radiation dose estimate for consideration in adjudication of the claim. 38 C.F.R. § 3.311(a)(3).
After a separate dose estimate has been prepared, this issue must be referred to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b) (2011). The Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311(c)(1) (2011). After referral, the Under Secretary for Benefits must then be asked to again determine the likelihood that the Veteran's claimed exposure to radiation in service resulted in B-cell lymphoma. The Under Secretary for Benefits must specifically determine whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not the Veteran's B-cell lymphoma resulted from exposure to radiation in service or whether there is no reasonable possibility that the Veteran's B-cell lymphoma resulted from radiation exposure in service.
Further, the Board notes that the claims file contains a February 2009 response from the Naval Submarine Medical Research Laboratory, in which it was indicated that the Navy's Bureau of Medicine and Surgery Ionizing Radiation Branch Head is investigating this matter. On remand, the RO should determine whether any relevant information was obtained or could be obtained from this investigation.
Additionally, VA has an obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants in obtaining evidence, to include relevant records from VA or private medical care providers. 38 C.F.R. § 3.159 (2011). The Veteran indicated on his November 2007 claim that he received medical treatment at Methodist Hospital. As such, the RO should determine whether all available, relevant records from Methodist Hospital have been associated with the claims file. Any records not associated with the claims file should be obtained.
Finally, the Board notes that the Veteran was afforded VCAA notice in May 2008 with regard to his claim for service connection for neuropathy of the bilateral feet. This letter did not, however, afford the Veteran appropriate notification of the requirements regarding secondary service connection. Therefore, upon remand, the Veteran should be given proper notice of the requirements for establishing secondary service connection, according to 38 C.F.R. § 3.310.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran with appropriate notice of VA's duties to notify and to assist. Particularly, the Veteran should be properly notified of how to substantiate a secondary service connection claim under 38 C.F.R. § 3.310.
2. Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable the RO to obtain any additional pertinent evidence not currently of record, to specifically include any medical records relating to the Veteran's B-cell lymphoma or peripheral neuropathy that have not yet been associated with the claims file. Attempts should be made to obtain any available, relevant medical records from Methodist Hospital. The RO should also invite the Veteran to submit any pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. Associate any records received, including negative responses, with the claims file.
3. Contact the Navy's Bureau of Medicine and Surgery Ionizing Radiation Branch Head to determine whether any relevant information was obtained or could be obtained regarding the Veteran's in-service exposure to radiation. Associate any responses with the claims file.
4. Refer the estimates and supporting documentation to an independent expert, selected by the Director of the National Institutes of Health, who shall prepare a separate radiation dose estimate for consideration in adjudication of the claim.
5. After obtaining the dose estimate, refer the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). The Under Secretary for Benefits should consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health, if necessary. After referral, the Under Secretary for Benefits should determine the likelihood that the Veteran's claimed exposure to radiation in service resulted in his B-cell lymphoma. Specifically, the Under Secretary for Benefits should determine whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not the Veteran's B-cell lymphoma resulted from exposure to radiation in service or whether there is no reasonable possibility that the Veteran's B-cell lymphoma resulted from radiation exposure in service. If the Under Secretary for Benefits is unable to make such a determination, he or she shall refer the matter to an outside consultant in accordance with 38 C.F.R. § 3.311(d).
6. Then, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2011).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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).
_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).