Citation Nr: 1119968 Decision Date: 05/23/11 Archive Date: 06/06/11 DOCKET NO. 06-05 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypothyroidism, to include as due to an undiagnosed illness, or as due to exposure to environmental hazards and/or radiation. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1987 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO), which denied the Veteran's claim for service connection for hypothyroidism. The Board has previously remanded the Veteran's claim three times. It was first remanded in March 2008 for additional development. The agency of original jurisdiction was asked to obtain outstanding records of pertinent treatment and to provide the Veteran with a VA examination. An examination was not performed; therefore, in November 2009, the Board remanded the matter for compliance with the March 2008 remand directives. The Veteran was provided a VA examination in February 2010. Prior to the matter returning to the Board, however, the Veteran submitted September 2010 statement indicating that he wished to testify before a member of the Board about his claim. In November 2010, the Board remanded the matter for a third time to comply with his request for a hearing. In March 2011, the Veteran testified before the undersigned during a Board hearing at the RO. During the hearing, the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for hypothyroidism. After a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claim. In particular, another VA examination is needed. The Veteran was first diagnosed with hypothyroidism in 2003. See February 2010 VA examination report. The Veteran reports that he has experienced symptoms of fatigue, memory loss and skin problems since his period of service, and he claims that this symptomatology marked the onset of his currently diagnosed hypothyroidism. The Veteran also asserts that his hypothyroidism is related to exposure to environmental hazards, radiation from armor-piercing munitions, nerve agents and other toxins during his period of service. In the alternative, the Veteran contends that his thyroid disorder and his other reported symptoms (fatigue, memory loss, and skin problems) are related to an undiagnosed illness resulting from exposure to environmental hazards during his period of service in the Persian Gulf. The Veteran's service records confirm his service in the Persian Gulf from December 1990 to June 1991. A July 1997 correspondence from the Office of the Secretary of Defense shows that the Veteran's unit was likely exposed to nerve agent sarin and cyclosarin while it was stationed near Khamisiyah, Iraq in March 1991. The Veteran has also submitted news articles that discuss the depleted uranium used in armor piercing ammunition during the Gulf War and the likely exposure Gulf War soldiers may have had to residual toxic dust particles from the radioactive ammunition. For purposes of this claim, the Board does not dispute the Veteran's potential exposures to these toxins. Although the Veteran was provided a February 2010 VA examination to determine the nature and likely etiology of his thyroid disorder, the Board finds that another VA medical opinion is needed. The Board notes that the February 2010 VA examiner failed to consider the Veteran's assertion that his symptoms are related to an undiagnosed illness. Also, a new medical opinion is needed to address the additional evidence associated with the claims folder and the Veteran's assertions raised during the March 2011 Board hearing. A new VA examination is requested to obtain a medical opinion as to whether the Veteran's hypothyroidism is related to his period of service, to include exposure to environmental hazards, radiation from armor-piercing munitions, nerve agents and other toxins while he was stationed in the Persian Gulf. The examiner should also comment on whether the Veteran's collective symptomatology comprises an undiagnosed illness related to his period of service in the Persian Gulf. In doing so, the examiner is asked to consider the Veteran's assertion that the symptomatology (fatigue, memory loss and skin problems) that he first experienced in service marks the onset of his current diagnosed disorder. The examiner should also comment on the findings contained in the previous VA examinations and the February 2011 private medical statement. Prior to any examination, VA should ask the Veteran to identify any outstanding records of pertinent VA and private treatment, and obtain those records. In addition, the Veteran has also submitted various internet materials suggesting that radiation exposure may cause hypothyroidism. While the Board notes that the Veteran's hypothyroidism is not listed as a presumptive disability under 38 C.F.R. § 3.309 or 38 C.F.R. § 3.311(b)(2), for diseases not listed under 38 C.F.R. § 3.311(b)(2), VA shall nevertheless consider that claim under the provisions of 38 C.F.R. § 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). Since the record contains information that suggests that the Veteran's hypothyroidism could be a radiogenic disease, the special development procedures required under 38 C.F.R. § 3.311 are applicable. Accordingly, a request must be made, to the service department and the Defense Threat Reduction Agency, for any available records concerning the Veteran's exposure to radiation while he was station in the Persian Gulf. Thereafter, all of the available records concerning the Veteran's exposure to radiation are to be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate. Once the dose estimate is prepared, before the claim is adjudicated, it must be referred to the Under Secretary of Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). See 38 C.F.R. § 3.311(b)(1). This regulation indicates that the Under Secretary for Benefits will make a determination as to whether it is at least as likely as not that the Veteran's hypothyroidism resulted from exposure to radiation in service. 38 C.F.R. § 3.311(c)(1)(i). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain any outstanding VA or private pertinent treatment records identified by the Veteran. 2. The RO/AMC should request from the appropriate agency (service department, Defense Threat Reduction Agency, etc.) any available records concerning the Veteran's exposure to radiation from residuals of depleted uranium used in armor piercing ammunition during his period of service in the Persian Gulf from December 1990 to June 1991 3. The RO/AMC, in accordance with 38 C.F.R. § 3.311(a)(2)(iii), should forward the Veteran's records concerning his radiation exposure, including any service records, his statements and testimony regarding radiation exposure, and any other information obtained from the above information request, to the Under Secretary for Health, for preparation of a dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided.) If more information from the Veteran is required regarding specifics of his alleged exposure, he should be contacted and asked to provide the information. 4. If the above-requested development results in a positive dose estimate, refer the claim to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c). 5. After all the available records have been obtained, the RO/AMC should schedule the Veteran for a VA examination, with the appropriate specialist, to identify the nature and likely etiology of the Veteran's claimed thyroid disorder. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. After reviewing of the claims file and the examination report, the examiner should provide a medical opinion as to whether it is at least as likely as not that the Veteran's diagnosed disorder: (a) had its onset during service; or (b) is related to any aspect of his period of service (including exposure to environmental hazards, radiation from armor-piercing munitions, nerve agents and other toxins). The examiner should also indicate whether the Veteran's collective symptomatology (hypothyroidism, fatigue, memory loss and skin problems) comprise an undiagnosed illness related to his service in the Persian Gulf. Any medical opinion provided should include an analysis as to the likelihood that the level of exposure to residual toxins from radiation from armor-piercing ammunitions could cause or aggravate the Veteran's hypothyroidism. The examiner is also asked to consider the Veteran's assertion that the symptomatology that he first experienced in service marked the onset of his current diagnosed disorder. The examiner should also comment on the findings contained in the previous VA examinations and in a February 2011 private medical statement. The examiner should provide a complete rationale for any opinion provided. If the examiner determines that it is not feasible to respond to any of the inquiries, the examiner should explain why it is not feasible to respond. 6. If any benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations and affords them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2010).