Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011)

Excerpt from decision below: "Although not discussed in the Secretary's brief, the Court notes that all three of the appellant's claimed conditions are associated with radiation exposure. See 38 C.F.R. §§ 3.309(d)(2)(xv); 3.311(b)(2)(xvi), (xxiii) (2011). If it is ultimately found that the appellant has multiple conditions associated with radiation exposure, that fact may support the appellant's claims. However, the 2 likelihood that a single individual would independently develop these three conditions without having been exposed to radiation is likely an issue beyond the competence of the Board. Accordingly, on remand, the Board should consider whether to obtain anexpert opinion on the ikelihood of the veteran developing his diagnosed conditions independent of radiation exposure. See >" ============= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-3588 CARLOS CONTRERAS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The pro se appellant, Carlos Contreras, appeals a June 8, 2009, Board of Veterans' Appeals (Board) decision that denied his claims for service connection for urinary tract cancer and posterior subcapsular cataracts and denied reopening of his claim for service connection for prostate cancer. Record (R.) at 3-20. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the June 8, 2009, decision and remand the matters for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Navy from July 1954 to May 1958. R. at 1402. During service he participated in Operation WIGWAM, "a one-shot nuclear weapon test conducted in the Pacific Ocean 520 nautical miles southwest of San Diego, California, at 1300 on 14 May 1955." R. at 1160. In 1997, the appellant sought service connection for an enlarged prostate and was denied. R. at 1434-39, 1453-56. In 2000, the appellant applied for service connection for prostate cancer. R. at 1352. In July 2000, the Defense Threat Reduction Agency confirmed the appellant's participation in Operation WIGWAM but estimated that he had not received a detectable level of radiation exposure based upon location and tasks performed by the ship on which he served as well as other available evidence. R. at 1161. The appellant's claim was denied by the Board in October 2002 on the basis that the appellant was not exposed to ionizing radiation and there was no medical evidence connecting his condition to radiation exposure or service. R. at 831-33. Subsequently, the appellant sought to reopen his claim and also applied for service connection for urinary tract cancer and posterior subcapsular cataracts. R. at 796-97. After an extended procedural history, the Board decision on appeal denied reopening of the appellant's prostate cancer claim and denied his other two claims. R. at 3-20. II. ANALYSIS On appeal, the Secretary concedes that remand is required for the Board to reconsider the appellant's claims for urinary tract cancer and posterior subcapsular cataracts. Specifically, the Secretary concedes that the Board erred in failing to apply the presumption that the appellant was exposed to radiation and failed to conduct a proper analysis of whether that presumption had been rebutted. Secretary's Brief (Br.) at 11-13. The Court agrees. The appellant meets the definition of a "radiation-exposed veteran" based upon his participation in Operation WIGWAM. 38 C.F.R. § 3.309(d)(3)(iv)(L) (2011) (defining operation WIGWAM as a radiation- risk activity). Although the presumption of exposure may be rebutted, it cannot be ignored. See Douglas v. Shinseki, 23 Vet.App. 19, 24-25 (2009). The Secretary also concedes that the Board's statement questioning the nature of the appellant's cataracts fails to address the specific diagnosis in an August 2003 medical note. Secretary's Br. at 12-13 (citing R. at 721). Again, the Court agrees that the Board's analysis is inadequate in failing to analyze this evidence. Although not discussed in the Secretary's brief,the Court notes that all three of the appellant's claimed conditions are associated with radiation exposure. See 38 C.F.R. §§ 3.309(d)(2)(xv); 3.311(b)(2)(xvi), (xxiii) (2011). If it is ultimately found that the appellant has multiple conditions associated with radiation exposure, that fact may support the appellant's claims. However, the 2 likelihood that a single individual would independently develop these three conditions without having been exposed to radiation is likely an issue beyond the competence of the Board. Accordingly, on remand, the Board should consider whether to obtain an expert opinion on the likelihood of the veteran developing his diagnosed conditions independent of radiation exposure. See Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (holding that the Board cannot make inferences from medical evidence that are beyond the competence of a lay person); cf. Stefl v. Nicholson, 21 Vet.App. 120 (2007) (noting that "whether the claimed condition has manifested itself in an unusual manner" is an issue that maybe addressed by a medical opinion in an appropriate case). Despite his concessions, the Secretary argues that the denial of reopening of the appellant's claim for service connection for prostate cancer should be affirmed because no new and material evidence has been submitted. Secretary's Br. at 7-9. However, the Secretary's argument and the Board's decision on this issue are both flawed because they fail to recognize that the new evidence that the appellant has been diagnosed with other conditions associated with radiation exposure is relevant to his prostate cancer claim. The Court has held that new evidence that indicates that a medical opinion is warranted is sufficient to reopen a claim. Shade v. Shinseki, 24 Vet.App. 110, 117 (2010). As discussed above, the new evidence that the appellant has been diagnosed with other conditions associated with radiation exposure tends to support his claim and the Board failed to address this evidence in denying reopening. Accordingly, a remand is also required for the Board to reconsider this claim. The appellant makes a number of arguments that the Court will also address. First, to the extent that the appellant argues that the Secretaryerred in not obtaining his medical records from the SocialSecurityAdministration (SSA),therecordindicatesthattheSSA respondedthatthoserecords had been destroyed. R. at 178. Therefore, the Secretary did not err in failing to obtain records that no longer exist. Second, the appellant argues that the Board erred in failing to recognize that he was exposed to up to 400 rems of radiation. However, the Court notes that the evidence cited by the appellant discusses Operation WIGWAM generally and does not preclude the Board from making a contrarydetermination based upon the estimate prepared concerning the specific ship on which the appellant served. Nonetheless, the Board will have to reconsider the issue of exposure on remand, 3 weigh all the relevant evidence, and provide reasons or bases for its conclusion. Finally, the appellant argues that the Secretary erred in not following the procedures set forth in 38 C.F.R. § 3.311. However, the applicability of those procedures is an issue that is properly considered by the Board in the first instance after reconsidering the issue of whether the appellant was exposed to radiation. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's June 8, 2009, decision is VACATED and the matters are REMANDED to the Board for further proceedings consistent with this decision. DATED: Oct. 11, 2011 Copies to: Carlos Contreras VA General Counsel (027) 4