Veteranclaims’s Blog

October 18, 2011

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

Filed under: Uncategorized — veteranclaims @ 6:11 pm

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
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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 ></bKahana 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).”
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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
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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,
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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)
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