10-03 714
10-03 714
| Board of Vet. App. | Nov 6, 2017Background
- Veteran served on active duty from Sept. 1974 to Sept. 1977 and claims service connection for a respiratory disability (including radiation/asbestos exposure) and for hypertension (including as due to radiation).
- RO originally denied claims in Feb. 2009; Board denied hypertension in Feb. 2014 but remanded the respiratory issue; Court vacated the Board’s hypertension denial and remanded by JMR in Mar. 2015.
- Board remanded the issues to the AOJ multiple times; most recently the Board requested a radiation dose estimate from the Under Secretary for Health program (9-11 Era Environmental Health Program).
- March 2017 program director estimated the Veteran’s maximum possible radiation dose at 0.07 REM and opined radiation was unlikely to have caused the claimed conditions.
- April 2017 memorandum and Marshall Islands (Lawrence Livermore Lab) materials raised concerns about dose estimates and ingestion pathways (cesium-137), undermining reliance on the March 2017 dosimetry alone.
- May 2017 VA exam relied in part on a history that hypertension was first noted in the 1980s but failed to address the Veteran’s assertion he was told he had hypertension in 1978; Coatesville VA treatment records potentially relevant are not in the file.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for respiratory disability (including radiation/asbestos exposure) | Exposure at Enewetak Atoll and related contamination caused respiratory disability | Program dosimetry shows extremely low dose (0.07 REM) making causation unlikely | Remanded for further dosimetry review (including Marshall Islands/LLNL findings) and any further development |
| Service connection for hypertension (including radiation exposure; and whether onset within 1 year of separation) | Hypertension was diagnosed around 1978 (Veteran’s testimony), i.e., within 1 year of separation; may be related to service/radiation | Exam and program opinion say onset in 1980s and low radiation dose make service connection unlikely; missing Coatesville VA records | Remanded for (1) obtain Coatesville records, (2) new or supplemental medical opinion addressing the 1978 diagnosis assertion and causation, and (3) further dosimetry review |
Key Cases Cited
- Colvin v. Derwinski, 1 Vet. App. 171 (1991) (Board may not make determinations requiring medical expertise)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (duty to obtain relevant VA treatment records)
- Stegall v. West, 11 Vet. App. 268 (1998) (VA must comply with remand directives; substantial compliance required)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence after remand)