Citation Nr: 0005176 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-13 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for bladder cancer due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran performed verified active service from September 1965 to September 1969, and from April 1973 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In his August 1998 substantive appeal, the veteran raised the issue of entitlement to service connection for bladder cancer due to exposure to asbestos. The Board refers this issue to the RO for appropriate action. FINDING OF FACT The veteran's claim of entitlement to service connection for bladder cancer due to exposure to ionizing radiation is supported by cognizable evidence demonstrating that the claim is plausible and capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for bladder cancer due to exposure to ionizing radiation is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. In this case, the Board finds that the veteran's claim is well grounded. Bladder cancer is a radiogenic disease under 38 C.F.R. § 3.311(b)(2) (1999). The appellant's DD Form 1141 shows that he was exposed to ionizing radiation during most of his military career. The record further at the bladder cancer was diagnosed more than five years after his first exposure in service. Moreover, he claims that the disease is relate to his radiation exposure while in service. Thus, by meeting the required criteria, the Board finds that the claim is well grounded. ORDER The claim of entitlement to service connection for bladder cancer due to exposure to ionizing radiation is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for bladder cancer due to exposure to ionizing radiation is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Pursuant to the duty to assist, the Board finds that further development is necessary in this case. Initially, the Board recognizes that the appellant was a qualified submariner, and that his service included sea service with the nuclear submarine service during the aforementioned service periods. Secondly, the Board notes that the appellant was a qualified torpedoman. Hence, his duties would have included time spent in weapons compartments. Thirdly, the Board notes that the veteran contends that while at sea he was exposed to ionizing radiation from both the nuclear reactor and from nuclear weapons. Significantly, however, he further alleges that a film badge is only worn near reactor bays, and not near weapons. As a result, he maintains that the truest reading of his ionizing radiation exposure level can only be obtained be securing the "daily tritium monitor logs" from each submarine with which her served. These logs were reportedly maintained on an hourly basis. As these records have yet to be requested further development is in order. He further maintains that it was not until the 1970's that shielding was installed around the warheads to contain the radiation. Thus, he maintains that there are additional relevant government records available that show he was exposed to higher levels of ionizing radiation that have not been associated with the claims file. As a result, he feels that the opinion offered by the Chief of Public Health and Environmental Hazards is inadequate because it was based on incomplete records. Given the potential relevance of these records, the duty to assist requires that an attempt be made to obtain the fixed tritium monitor records, and/or any other relevant records that show the measurements of any ionizing radiation emitted by nuclear warheads on the ships that he served. 38 C.F.R. § 3.311(a)(2)(iii). Accordingly, the case is REMANDED to the RO for the following actions: 1. The veteran contends that his bladder cancer began in service as abdominal pain and continued until it was surgically removed in 1996. He should be asked to provide any medical evidence either in or after service that supports his assertion that he developed bladder cancer in service. 2. The RO should contact the National Personnel Records Center (NPRC) in St. Louis, Missouri, and request the service medical records from the veteran's first period of service (April 1965 to April 1969). The Board notes that these records are not associated with the claims file, and there is no explanation from NPRC why they are missing. 3. Meanwhile, the RO should contact the Naval Dosimetry Center, pursuant to M21- 1, Part III, Chapter 5, and attempt to obtain any additional records that may contain radiation exposure information about emissions from nuclear weapons stored on board the ships that the veteran served aboard. The RO should specifically request results from any "fixed tritium monitors" that reportedly were located in nuclear weapons compartments, and reportedly recorded hourly. 4. If any additional records provided by the Naval Dosimetry Center reflect that the veteran was exposed to additional ionizing radiation from nuclear warheads, or any other source, the RO should undertake any other development required under 38 C.F.R. § 3.311, to include another review by the Director of the Compensation and Pension Service. 5. Thereafter, the RO should review the claims file and ensure that all development actions have been conducted and completed in full. Then, the RO should undertake any other indicated development and adjudicate the issue of service connection for bladder cancer pursuant to 38 C.F.R. §§ 3.303 and 3.311. 6. If the benefit sought on appeal is not granted to the veteran's satisfaction, or if a timely notice of disagreement is received with respect to any other matter, the RO should issue a supplemental statement of the case for the issue in appellate status and inform the veteran of any issue with respect to which further action is required to perfect an appeal. The veteran and his representative should then be provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran unless he is otherwise notified by the RO. DEREK R. BROWN Member, Board of Veterans' Appeals