Veteranclaims’s Blog

August 7, 2017

Single Judge Application; Molitor v. Shulkin, No. 15-2585, 2017 WL 2375899 at *4, 10 (U.S. Vet. App., Mar. 30, 2017) (rejecting Secretary’s contention that “there is an ‘umbrella of credibility’ that hangs over all the prongs of the duty to assist.”)

Excerpt from decision below:

“Moreover, there is no prerequisite credibility assessment in the regulation. Rather, the regulation only requires a contention that a disease is a result of ionizing radiation in service. There is no provision by which the Secretary or the Board can reject that contention for lack of credibility and thereby forego obtaining a dose estimate. See Ortiz-Valles v. McDonald, 28 Vet.App. 65, 71
(2016) (“The Secretary cannot simply add restrictions to a regulation where they do not exist.”); see also Molitor v. Shulkin, No. 15-2585, 2017 WL 2375899 at *4, 10 (U.S. Vet. App., Mar. 30, 2017) (rejecting Secretary’s contention that “there is an ‘umbrella of credibility’ that hangs over all the prongs of the duty to assist”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-0686
FRANK E. RICHARDSON, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Air Force veteran Frank E. Richardson appeals through counsel
a February 2, 2016, Board of Veterans’ Appeals (Board) decision that denied service connection for lung cancer. For the following reasons, the Court will set aside the Board’s February 2016 decision and remand the matter for further proceedings.
I. ANALYSIS
During his second period of active duty, from November 16, 1956, to June 23, 1961, Mr. Richardson served as an Air Policeman in the 9th Combat Defense Squadron at Mountain Home Air Force Base in Idaho. He described his duties as escorting nuclear weapons to and from B-47 bombers and delivering them to underground storage facilities known as “igloos.” He believe s that he was exposed to ionizing radiation when the nuclear weapons developed leaks during events
he referred to as “7 High” incidents. Record (R.) at 2458. Mr. Richardson stated that when this
happened, it was his responsibility to evacuate and secure the area, call the base fire department to
wash down the area, and summon base personnel with Geiger counters to determine that the area
was again safe for general use. His account is corroborated by a lay statement from a base fireman
2
that the fire department and the Air Police were “the first to respond and the last to leave” an area
when such an incident occurred. R. at 1921.
Mr. Richardson describes a prolonged incident that occurred toward the end of his period
of active duty:
In March or April 1961 we had a bad leak in one igloo where my men and
I evacuated all [] personnel but our orders were to secure the dump allowing
no one in. All day long I was on the phone to Omaha, Nebraska, SAC
[Strategic Air Command] Headquarters. I was not relieved until our shift
was over at 4:30 p.m. Next day we were stripped of our clothing sent back
to barracks for GI showers and given new fatigues.
R. at 797. Mr. Richardson further related that the cleanup and investigation of this incident took
3 days. R. at 33. He also states that this and all other 7 High incidents were reported to SAC
headquarters and recorded in a log book.1 Id.
A claimant can establish service connection for certain types of cancer claimed as due to
in-service exposure to ionizing radiation in one of three ways: (1) Via the presumption of service
connection for “radiation exposed veterans” under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)
(2016); (2) by meeting certain conditions specified in 38 C.F.R. § 3.311(b) for veterans with
radiogenic diseases; or (3) by satisfying the elements of direct service connection under 38 C.F.R.
§ 3.303(d). Stone v. Gober, 14 Vet.App. 116, 118 (2000). “Radiation exposed veterans” is a term
pertaining mainly to those participating in atmospheric nuclear weapons tests or involved in the
post-war occupation of Hiroshima and Nagasaki; neither party contends that Mr. Richardson is
such a veteran and the presumption is not at issue in this case. The Court’s analysis will therefore
consider the other two alternatives.
A. Radiogenic Disease Under 38 C.F.R. § 3.311
VA classifies lung cancer as a “radiogenic disease.” 38 C.F.R. § 3.311(b)(2)(iv) (2016).
Where, as here, a radiogenic disease first became manifest after service, but not to a compensable
1 Although the Board ordered the Secretary to search for these log books and related records in a previous
remand, the record only reflects a report from the Air Force Historical Research Agency, that “[a]ccording to the
official unit histories of the 9th Strategic Aerospace Wing, the host unit at Mountain Home AFB in 1961, there were
no radiation leaks or accidents reported.” R. at 201 (emphasis added). It is not clear that a search was made for the
log books referenced by Mr. Richardson or that official unit histories would ordinarily be expected to note radiation
leaks or accidents. Thus, the evidentiary value of this communication is negligible. Moreover, the search for these
log books should encompass Mr. Richardson’s entire term of service. As the Board noted, R. at 286, the search for
these federal records may be terminated “only if VA concludes that the records sought do not exist or that further
efforts to obtain these records would be futile.” 38 C.F.R. § 3.159(c)(2) (2016). No such finding has been made with
respect to the log books.
3
degree within the presumptive periods, “an assessment will be made as to the size and nature of
the radiation dose or doses.” 38 C.F.R. § 3.311(a)(1) (emphasis added). For veterans like Mr.
Richardson, who is not a “radiation exposed veteran,” that assessment will be based on “any
available records concerning the veteran’s exposure to radiation,” including but not 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.” 38 C.F.R. § 3.311(a)(2)(iii).
Mr. Richardson argues that § 3.311(a)(1) requires VA to obtain a dose estimate, and asks
the Court to remand the case with instructions to forward his file to the Under Secretary of Health
to obtain the dose assessment. The Secretary concedes that the case should be remanded to obtain
a statement of reasons or bases why the Board did not consider the applicability of § 3.311(a)(1)
to the facts of this case. The Secretary contends that there are findings of fact that the Board must
make, however, including a threshold finding of credibility of Mr. Richardson’s statements of
radiation exposure, precluding the Court from ordering the Board to obtain a dose estimate.
The Secretary’s argument is not persuasive. Although the Board did not address the
applicability of § 3.311(a)(1) to the circumstances of this case, because the question presents a
legal issue, and the relevant facts concerning applicability are not in dispute, the Court will
consider this matter in the first instance. See Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed.
Cir. 2014) (deciding as a question of law whether § 3.156(c) was applicable in a case where the
facts were undisputed); Emerson v. McDonald, 28 Vet.App. 200, 206 (2016) (same).
The plain language of the regulation mandates obtaining a dose estimate when three
requirements are met: (1) The veteran must suffer from a radiogenic disease; (2) first manifested
after service, but not within any applicable presumptive period; and (3) there must be a contention
that the disease resulted from ionizing radiation in service. See Wandel v. West, 11 Vet.App. 200
(1998); see also Thompson v. McDonald, 815 F.3d 781, 784 (Fed. Cir. 2016) (interpretation of a
regulation requires examination of the plain language according to common meanings); Petiti v.
McDonald, 27 Vet.App. 415, 422 (2015) (“Regulatory interpretation begins with the language of
the regulation, the plain meaning of which is derived from the text and its structure.”).
Here, the undisputed facts demonstrate that all three requirements are met. As the Board
noted, radiogenic diseases include lung cancer. See R. at 8-9; 38 C.F.R. § 3.311(b)(2)(iv) (2016).
The Board stated that Mr. Richardson was diagnosed with lung cancer in 2008, and the medical
4
evidence of record confirms that statement. See R. at 11, 586-88. This diagnosis occurred well
after any presumptive period. Finally, Mr. Richardson’s testimony at one of the Board hearings
included the following exchange:
Q. [I]t’s your contention that this lung cancer is a result of your exposure to
ionizing radiation, is that correct?
A. Right.
Q. And this exposure occurred while you were stationed at Mountain Home
Air Force Base, Idaho, from September of 1958 to May of 1961, is that
correct?
A. Yes.
R. at 2453-54 (emphasis added). Thus, it is undisputed and indisputable that the requirements of
§ 3.311(a)(1) are met, to the point that the Court could take judicial notice of the salient facts. See
Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) (holding that the Court “may take judicial notice
of facts not subject to reasonable dispute.”).
Moreover, there is no prerequisite credibility assessment in the regulation. Rather, the regulation only requires a contention that a disease is a result of ionizing radiation in service. There is no provision by which the Secretary or the Board can reject that contention for lack of credibility and thereby forego obtaining a dose estimate. See Ortiz-Valles v. McDonald, 28 Vet.App. 65, 71 (2016) (“The Secretary cannot simply add restrictions to a regulation where they do not exist.”); see also Molitor v. Shulkin, No. 15-2585, 2017 WL 2375899 at *4, 10 (U.S. Vet. App., Mar. 30, 2017) (rejecting Secretary’s contention that “there is an ‘umbrella of credibility’ that hangs over all the prongs of the duty to assist”).
Although this case seems to be characterized by a dearth of records on which such a dose
estimate might be made,2 the language of the regulation is mandatory. Furthermore, the Court
cannot speculate as to the data sources and methodologies that the Under Secretary of Health
would employ in preparing a dose estimate where dosimetric data specific to a veteran is absent.
Therefore, the absence of a dose estimate is inherently prejudicial to Mr. Richardson. See Reliford
v. McDonald, 27 Vet.App. 297, 304 (2015) (explaining that where the effect of an error cannot be
2 Mr. Richardson’s service records were apparently destroyed by fire and the record includes a formal finding
of unavailability of the service records. Further, the record includes a letter from the Air Force Safety Center
suggesting that no DD Form 1141 would have been maintained for Air Policemen with Mr. Richardson’s job
classification during his period of service. See R. at 196. VA inquiries to various Air Force agencies have failed to
produce any records of radiation dosage pertaining to Mr. Richardson, and Mr. Richardson’s testimony concerning the
lack of monitoring procedures at the air base during his period of service raises a serious question whether records of
his occupational radiation dosage would have been generated.
5
quantified, the Court may not speculate on what the outcome might have been but for the error).
Thus, the Board erred in failing to obtain a dose estimate, which requires remand for that purpose.
B. Direct Service Connection
Generally, in order to establish service connection, “the veteran must show (1) the existence
of a present disability, (2) in-service occurrence or aggravation of a disease or injury, and (3) a
causal relationship between the present disability and the disease or injury incurred or aggravated
during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2009). There is no dispute
that Mr. Richardson has suffered lung cancer. As discussed below, the Secretary and the Board
failed to consider and develop evidence pertaining to both of the other Shedden requirements.
As Mr. Richardson points out, he twice testified that shortly after discharge from service,
he lost all but four of his teeth. See R. at 41, 2462; see also R. at 1496, 1897. He further testifie d
that a VA doctor had advised him that losing teeth is one of the first signs of exposure to ionizing
radiation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence may be
competent and sufficient to establish a diagnosis when the veteran is reporting a contemporaneous
medical diagnosis).
The Board neither discussed this apparently favorable evidence, however, nor made any
pertinent finding of fact on this issue. Moreover, the record of proceedings contains no medica l
evidence by which the Board could have evaluated whether Mr. Richardson’s lost teeth were the
result of exposure to ionizing radiation. See Nieves-Rodriguez, 22 Vet.App. 295, 300 (2008)
(“[T]he content of information and evidence received by VA may require an appropriate response,
consistent with the duty to assist.”); Colvin v. Derwinsk i, 1 Vet.App. 171 (1991) (Board may base
medical determinations only on independent medical evidence).
Mr. Richardson also referred to medical articles relating tooth loss to exposure to ionizing
radiation. See R. at 1897. In neither of two Board hearings did the presiding officer, the Board
member who wrote the decision here on appeal, inquire about these articles or suggest that Mr.
Richardson submit them as evidence in the record. In failing to inquire about the articles, she
violated her duty under Bryant v. Shinsek i, 23 Vet.App. 488 (2010).
The Board did discuss the occurrence of at least nine separate growths that appeared on
Mr. Richardson’s skin and internal organs, including cysts on the kidney, nose, neck, and eyelids ,
a growth requiring removal of a salivary gland, and polyps on his vocal cords. Mr. Richardson has
consistently asserted that these growths were the result of exposure to ionizing radiation. The
6
Board’s focus was on whether any of those growths proved cancerous, and would therefore
constitute radiogenic diseases under § 3.311(b)(2). The Board failed to consider, however, whether
such an extended pattern of growths, albeit benign,3 would itself be evidence of exposure to
ionizing radiation. Again, there is no medical evidence of record to enable the Board to make that
assessment.
The essential evidentiary issue in this case is whether there were releases of material from
the nuclear weapons that would have resulted in exposure to ionizing radiation. There is evidence
that multiple 7 High incidents occurred during Mr. Richardson’s term of service. In addition to his
own testimony, there is a statement from a crew chief on B-47 bombers that he was aware of
numerous 7 High alerts being called during Mr. Richardson’s time in service. See R. at 1924.
Additionally, there is a statement from a member of the fire department at Mountain Home AFB
stating that he was called in to wash down the “contaminated area.” R. at 1921. This statement
not only confirms Mr. Richardson’s account of the procedures during 7 High incidents, but it is
also evidence that the Air Force believed at least in the possibility of the release of contaminants
during such incidents.
The record is unclear regarding what sort of occurrences would trigger a 7 High incide nt,
or whether they possibly or necessarily involved release of radioactive material. The Air Force
acknowledges that “it is entirely possible that Mountain Home AFB had initial suspicions of an
abnormal condition in a nuclear weapon, which would have prompted local actions described by
the veteran, as well as reporting to [SAC].” R. at 192. The letter went on to say that “our best
judgment is that if this was the case, the event was later discounted, upon collection of additiona l
information. ” Id. The former statement acknowledges the plausibility of Mr. Richardson’s account
of the procedures during a 7 High incident and his own involvement. The latter statement is
speculation, since the letter states that there are no records available. Nevertheless, it emphasize s
the lack of evidence of release of nuclear materials during such incidents.
Mr. Richardson testified, however, that the prevailing winds at Mountain Home AFB would
dissipate radioactive contaminants, blowing them into the Nevada desert. He further referred to
lawsuits by cattle and sheep ranchers located downwind of the base, and stated that the
3 Mr. Richardson states that the cyst removed from his leg proved cancerous and he was forced to undergo a
second surgical procedure to ensure that all the cancerous cells were removed. Apparently, the record evidence failed
to confirm this assertion.
7
Government had paid significant amounts in settlement of such claims. See R. at 40, 41. Such
settlements would constitute at least some evidence tending to show that radioactive releases
occurred. Again, the presiding officer did not followup on this testimony or suggest that Mr.
Richardson submit evidence of which he may have been aware of such lawsuits and settlements.
See Nieves-Rodriguez and Bryant, both supra.
For the foregoing reasons, the Court reverses the Board’s finding that the Secretary fulfille d
the duty to assist. On remand, the Board must address the issues addressed in this discussion.
C. Reasons or Bases
The Board is required to support its determinations of fact and law with a written statement
of reasons or bases that is understandable by the claimant and facilitates review by this Court. See
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The statement of reasons
or bases must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober,
14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record,
Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation that are made “potentially
applicable through the assertions and issues raised in the record,” Schafrath v. Derwinski,
1 Vet.App. 589, 592 (1991).
In finding against exposure to ionizing radiation, the Board principally relied on Air Force
statements that there was no record of a radiation leak, stating that “what the records would show
if a leak event had occurred, are significantly more persuasive and probative than the [v]eteran and
his buddies’ accounts of events occurring 50 years ago.” R. at 13. The Board’s used absence of
evidence in the Air Force records as substantive negative evidence to be weighed against the
credibility of the lay evidence, but without proper evidentiary foundation. See Horn v. Shinseki,
25 Vet.App. 231, 239 n.7 (2012) (and cases cited thereat) (requiring proper evidentiary foundation
to employ absence of evidence as substantive negative evidence). There has been no showing
what the recordkeeping procedures may have been during Mr. Richardson’s term of service, what
information records may have contained with respect to 7 High incidents, or the regularity of
recording of such matters. The record suggests that the Board even relied in part on the absence
of exposure records in a letter from the Defense Special Weapons Agency, despite a statement that
the agency maintains records only on radiation exposed veterans. See R. at 1266.
8
The Board referenced a 2010 letter from the Air Force safety center stating that Mr.
Richardson’s duties as an Air Policeman “would neither have involved nor allowed close
proximities to nuclear munitions.” R. at 11, 196. It is not clear, however, how that statement is
consistent with an earlier statement in the same letter that Mr. Richardson “could have provided a
variety of security duties, including access control to the Weapons Storage Area (WSA), weapon
convoy escort, and alert aircraft security.” Id. The Board neither stated what use it made of this
evidence nor addressed the apparent internal inconsistency in that letter or its apparent
contradiction with the lay evidence of record.
Mr. Richardson further argues that the Board’s statement of reasons or bases was
insufficient to support its reliance on an August 2014 statement of an officer at the Air Force Safety
Center. See R. at 192-93. The principal points of the letter are that any radioactive leak would be
categorized as a “Broken Arrow” incident, of which there is no record at Mountain Home AFB,
and that such a release would have rendered the igloo unusable. The letter went on to say that “all
of the structures remain in use today, with approval for the storage of explosive in all the original
igloos.” R. at 193.
Mr. Richardson submitted evidence, however, that calls into question the principal
assertions in the August 2014 statement, on which the Board placed heavy reliance. He questions
whether any regulations or procedures with regard to Broken Arrow incidents were in place prior
to 1961. See R. at 43, 79. The evidence further included details of a visit to the base where he
noted the removal of security structures around the igloos, and a general appearance of disuse. 4
He further related that the sergeant manning the gate at the base stated that he was unaware of
anything being stored in the igloos. The failure to discuss this contradictory evidence renders the
Board’s statement of reasons or bases inadequate.
For the foregoing reasons, a remand is required in this case. See Tucker v. West, 11
Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate”). The Court reminds the Board and
the Secretary that remanded claims are to be handled expeditiously. See 38 U.S.C. § 7112; see
4 Mr. Richardson stated that some four-wheel vehicles were parked on the grounds in front of the igloos.
This observation would neither prove nor disprove whether the underground interiors of the igloos were currently
employed for any purpose.
9
also Harvey v. Shinseki, 24 Vet.App. 284 (2011). This requirement is of special urgency given
Mr. Richardson’s advanced age (81 on August 16). In particular, the Court trusts that the matters
raised in sections A and B will be addressed in parallel, and not sequentially. In pursuing his claim
on remand, Mr. Richardson may submit additional argument and evidence, and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002).
II. CONCLUSION
On consideration of the foregoing, the Board’s February 2, 2016, decision is SET ASIDE
and the case is REMANDED for further proceedings consistent with this opinion.
DATED: June 28, 2017
Copies to:
Katheryn A. Bilodean, Esq.
VA General Counsel (027)

 

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