Citation Nr: 0514489 Decision Date: 05/26/05 Archive Date: 06/08/05 DOCKET NO. 96-19 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sarcoidosis, claimed as due to ionizing radiation, non-ionizing radiation and/or exposure to herbicides. 2. Entitlement to service connection for a skin disorder, to include basal cell carcinoma, claimed as due to ionizing radiation, non-ionizing radiation and/or exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from September 1963 to January 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the case to the RO in October 1999 and March 2001 to accommodate the veteran's request for a personal hearing before the Board. The case was before the Board again in August 2001 at which the time the claim was remanded for additional development. In March 2005, the veteran testified at a travel board hearing chaired by C.W. Symanski, who was designated by the Chairman to conduct the hearing and to render a final determination in this case. 38 U.S.C.A. § 7102(b) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran and his representative if further action is required on their part. REMAND The veteran has requested VA assistance in developing his claims concerning evidence and/or information alleged to be in the possession of a federal agency. See 38 U.S.C.A. § 5103A(b)(3) (West 2002). Specifically, he has requested VA to produce the following information and/or evidence: 1) to provide a list of any and all U.S. Air Force bases (AFB) used in the transportation and storage of Agent Orange; 2) to produce the actual chest x-ray films taken at the time of his discharge; 3) to confirm that Agent Orange was used at Lackland AFB and Keesler AFB during his period of service; 4) to provide a list of service personnel of the 2121 Comm. Sq. from Tyndall AFB at the time of his discharge, to include a list of its sports teams; and 5) to verify that he participated in experimental chemical weapons testing involving "Autumn Gold" and "MK Ultra." The veteran has not received a response from the RO on his information requests. The National Personnel Records Center (NPRC) has indicated having no further information on the veteran. The veteran has submitted a statement from Frank G. Lee, M.D., who opined that the veteran's multiple skin cancers may be due to exposure to chemicals. The RO should be able to request verification of the veteran's claimed Agent Orange exposure within the United States, as well as his claimed participation in chemical weapons testing, with the United States Armed Services Center for Unit Records Research (USASCURR). See Manual M21-1, Part III, Chapter 4, Par. 4.24(e), Addendum K (March 3, 2004). With respect to the veteran's other information requests, the RO should take appropriate action pursuant to 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159. If the information requests are not feasible, the RO should so notify the veteran. The veteran also alleges that his claims folder may not be complete. He testified to having submitted statements from his basketball coaches at Georgia State University, Lake Sumter Community College and University of Central Florida (UCF) corroborating that he suffered from right ankle swelling following his separation from service. See Transcript of Personal Hearing dated March 16, 2005, p. 8. The Board only finds a May 1983 statement from the UCF coach, received in May 1983, referring to a different compensation claim filed by the veteran. The veteran should be notified that the claimed statements are not of record prior to any further adjudication of the claim. The veteran next claims that his diseases are related to inservice exposure to ionizing radiation due to his proximity to radio towers/transmitters. He has a confirmed diagnosis of skin cancer which, as a radiogenic disease, entitles the veteran to special development procedures with evidence of possible exposure to ionizing radiation. See 38 C.F.R. § 3.311(b)(2)(vii) (2004). The Court of Appeals for Veterans Claims (CAVC) has taken judicial notice that radiofrequency radiation is non-ionizing in nature and not subject to review under the ionizing radiation statute and regulations. Rucker v. Brown, 10 Vet. App. 67 (1997) citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984. The veteran has referenced obtaining information from a company called IMAC that allegedly redesigned the radio transmitters it manufactured for the military due to excessive output of x-rays. The veteran should be advised to submit any materials in his possession indicating that the radio tower transmitters he worked around, in fact, emitted ionizing types of radiation. If the veteran provides evidence that the transmitters emitted ionizing radiation, then the RO should follow the procedures for developing "other exposure" ionizing radiation claims by obtaining a probable dose estimate from the Under Secretary for Health. 38 C.F.R. § 3.311(a)(2)(iii) (2004). The RO has already obtained information from the service department that the veteran has no record of occupational exposure to ionizing radiation (e.g., no DD Form 1141). Accordingly, this case is REMANDED to the RO via the AMC for the following action: 1. The RO should respond to the veteran's request in producing the following information claimed in the possession of a federal agency: a) to provide a list of any and all U.S. Air Force bases (AFB) used in the transportation and storage of Agent Orange; b) to produce the actual chest x-ray films taken at the time of his discharge; c) to confirm that Agent Orange was used at Lackland AFB and Keesler AFB during his period of service; d) to provide a list of service personnel of the 2121 Comm. Sq. from Tyndall AFB at the time of his discharge, to include a list of its sports teams; and e) to verify that he participated in experimental chemical weapons testing involving "Autumn Gold" and "MK Ultra." If the information requests are not feasible, the RO should so notify the veteran and the reasons therefor. 2. The RO should notify the veteran of the following: a) that his claims folder does not include statements from his basketball coaches at Georgia State University, Lake Sumter Community College and University of Central Florida corroborating that he suffered from right ankle swelling following his separation from service; b) to submit his research concerning the company called IMAC that allegedly redesigned the radio transmitters it manufactured for the military due to excessive output of x-rays; c) to submit actual copies of all evidence and/or information, to include articles and treatise materials, in his possession which he believes his relevant to his claims on appeal. 3. Upon completion of the development requested above, the RO should attempt to verify with USASCURR the following: a) whether herbicides, to include Agent Orange, was used at Lackland AFB and Keesler AFB during the veteran's period of service b) whether the veteran may have been exposed to herbicides, including Agent Orange exposure within the United States during his period of service; c) whether the veteran participated in experimental chemical weapons testing involving "Autumn Gold" and "MK Ultra 4. If the veteran provides evidence that the radio towers/transmitters emitted ionizing radiation, the RO should follow the procedures for developing "other exposure" ionizing radiation claims by obtaining a probable dose estimate from the Under Secretary for Health. 5. Thereafter, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this REMAND is to obtain additional information and to ensure due process. No inference should be drawn regarding the final disposition of the claims as a result of this action. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ C.W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (2004).