Citation Nr: 1301631 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-39 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder, to include spondylosisthesis of L5-S1 and degenerative joint disease with chronic S1 joint dysfunction. 2. Entitlement to service connection for a thyroid disorder or Grave's disease, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or as due to radiation exposure and exposure to toxic chemicals. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active duty service from January 1990 to May 1990 and from November 1990 to July 1991, to include service in the Southwest Asia Theater of operations during the Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2006 and March 2009 rating decisions of the St. Paul, Minnesota Regional Office (RO) of the Department of Veterans Affairs (VA). By these rating actions, the RO denied service connection for a thyroid condition and, in part, spondylolisthesis at L3-L4 and L5-S1. The Veteran appealed these rating actions to the Board. In October 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims files. The Board notes that after the issuance of an August 2011 Supplemental Statement of the Case (SSOC), the RO received additional private and VA treatment records, dated in December 1999 and September 2011, respectively. However, because these reports disclose treatment for unrelated disorders or are essentially duplicative of evidence already of record (i.e., contain a diagnosis of Graves Disease), they are not pertinent to the appeal. Thus, a remand to have the RO initially consider this evidence in the first instance is not necessary. 38 C.F.R. § 20.1304 (2012). The issues of whether new and material evidence has been received to reopen previously denied claims for service connection for bilateral hearing loss and left ankle disabilities have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for a thyroid disorder or Grave's disease, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or as due to radiation exposure and exposure to toxic chemicals is addressed in the REMAND portion of the decision below and is REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The record contains clear and unmistakable evidence that the Veteran had a congenital back disorder, characterized as low back spondylolisthesis, L5-S1, that preexisted his entry into military service. 2. The record contains clear and unmistakable evidence that there was no disability superimposed on the Veteran's preexisting congenital low back spondylolisthesis, L5-S1. 3. The competent medical evidence of record fails to establish that degenerative joint disease of the lumbar spine with S1 joint dysfunction was manifested in service or within one year of service discharge in May 1990 or July 1991, or that it is otherwise etiologically related to a period of military service. CONCLUSIONS OF LAW 1. The Veteran's L5-S1 spondylolisthesis clearly and unmistakably existed prior to his entry into military service, and the presumption of soundness at induction is rebutted. 38 U.S.C.A. §§ 1110, 1111, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(b) (2012). 2. A low back disorder, to include spondylolisthesis, L5-S1, and degenerative disc disease with chronic S1 joint dysfunction, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 4.9 (2012); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. With regard to the claim of entitlement to service connection for a low back disability, VA provided the Veteran with pre-adjudication notice on the Pelegrini II VCAA elements in a July 2007 letter. The letter told him to let VA know of any evidence he thought would support the above-cited claim, that it was his responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told him where to send what "we need." In addition, the Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). By the above-cited letter, the RO informed the Veteran of the Dingess elements. In Pelegrini II, the Court also held that VCAA notice should be given before an initial agency of original jurisdiction (AOJ) decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. The Veteran was provided pre-adjudication VCAA notice via the July 2007 letter. Id. Duty to Assist Regarding VA's duty to assist the Veteran with the claim for service connection for a low back disability, relevant service treatment records (STRs), service personnel records (SPRs) and post-service VA and private examination and clinical treatment reports, along with statements and testimony of the Veteran, his ex-spouse and his representative, have been associated with the claims files. In April 2011, the Veteran was afforded a VA spine examination in conjunction with this claim. The results of this examination report are contained in the claims files. The April 2011 VA examiner identified the nature of the Veteran's low back disability and discussed its etiological relationship, if any, to his periods of military service. The opinion was provided after a review of the claims files, to include the Veteran's service and post-service medical evidence, consideration of the Veteran's lay history, and clinical evaluations of the Veteran's spine. The examiner provided a complete rationale for his opinion, relying on and citing to the records reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The examination is accordingly fully adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, in October 2012, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the October 2012 hearing, the undersigned Veterans Law Judge identified one of the issues on appeal as entitlement to service connection for a low back disability. (See Hearing Transcript (T.) at page (pg.) 2)) Information was solicited regarding the onset, and post-service history and treatment for his low back disability. (T. at pg. 7). It was also discussed whether there were any outstanding medical records available demonstrating an earlier diagnosis of a low back disability. (See T. at pages (pgs.) (7-12)). Therefore, not only was the above-cited issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issue material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. The hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant's claims for service connection for a low back disability. The Board notes that the Veteran testified that he had sought treatment for his low back from the Minneapolis, Minnesota VA Medical Center (VAMC) from 1994 to 1995. A review of the claims files reflects that only some treatment records for the above-cited time frame from this VAMC have been associated with the claims files. According to the RO, however, these records are unavailable for review. (See RO's December 2008 Formal Finding on the Unavailability of Records). As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim for service connection for a low back disability based on the current record. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the element(s) necessary to substantiate the claim for service connection for a low back disability. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim for service connection for a low back disability based on the current record. II. Laws and Regulations General Service Connection criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38C.F.R. § 3.303(b). Some chronic diseases, such as arthritis, are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307(a)(3). This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). III. Merits Analysis The Veteran seeks service connection, in part, for a low back disability. The Veteran maintains that he injured his back and right shoulder when he fell out of a truck in February 1991. He maintains that he self-treated his low back from 1991 to 1994, at which time he sought treatment at the Minneapolis, Minnesota VAMC. He contends that he has not incurred any post-service injuries to his low back, to include when he sustained a post-service gunshot wound to the chest. (See May 2009 VA Gulf War Guidelines VA examination report and T. at pgs. 7-11, 13). The Veteran's STRs include DD Form 2246, Applicant Medical Prescreening Form, dated in late November 1989, wherein the Veteran denied having had back trouble. When examined for enlistment in November 1989, as well as for redeployment in May 1991, no back abnormalities were noted. The Veteran's spine was evaluated as "normal" at both examinations. (See November 1989 and May 1991 enlistment and redeployment examination reports, respectively). During these examinations, the respective examiners assigned the Veteran a numerical designation of 1 (except a 2 was assigned under H in November 1989) under P on the Veteran's physical profile, i.e., PULHES. (PULHES is the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S for psychiatric). Then, as now, the number 1 indicated that an individual possessed a high level of medical fitness and, consequently, was medically fit at service discharge. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Thus, because no low back disorder was noted at service entrance in 1989, the Veteran is entitled to the presumption of soundness with respect to his spine. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). In order to rebut the presumption of soundness, there must clear and unmistakable evidence that a low back disorder preexisted the Veteran's entrance into military service in January and November 1990 and clear and unmistakable evidence that it was not aggravated therein. VAOPGCPREC 3-03 (July 16, 2003). The Board finds that there is clear and unmistakable evidence that the Veteran's spondylolisthesis at L5-S1 preexisted his entrance into military service in January and November 1990. Here, post-service VA physicians have characterized the Veteran's low back disability, L5-S1 Grade I spondylolistheis, as a congenital defect. (See June 2004 and April 2011 VA treatment and examination reports). An April 2011 VA examiner maintained that he could not state with 100 percent certainty that the Veteran had evidence of Grade I spondylolisthesis prior to military service because there were no lumbar spine x-rays performed at that time. However, this same VA examiner unequivocally opined that x-rays of the lumbar spine, performed in 1999, revealed findings consistent with a defect at L5 that was consistent with a probable longstanding, more likely as not, congenital defect. (See April 2011 VA spine examination report). There is no opinion or VA that contradicts the April 2011 VA examiner's conclusion. The Board thereby finds that the Veteran has a congenital defect that by its very nature preexisted military duty. A congenital/developmental defect is not a disease or injury for compensation purposes and service connection may not be established for L5-S1 Grade I spondylolistheis. However, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). The presumption of soundness applies to a congenital disease but not to a congenital defect. Quirin v. Shinseki, 22 Vet. App 390 (2009). In this regard, the evidence also demonstrates that there was no disability superimposed on the Veteran's preexisting congenital L5-S1 spondylolysis such that service connection for this disability can be granted. 38 C.F.R. §§ 3.303(c). The Veteran has argued that he injured his low back at the same time that he sustained an injury to his right shoulder in February 1991. This scenario is not confirmed by his STRs. The Veteran's spine was evaluated as "normal" at November 1989 and May 1991 enlistment and redeployment examinations, respectively. (The Veteran elected not to undergo a separation examination in May 1990). A Report of Medical History, dated in May 1991, reflects that the Veteran denied having had any recurrent back pain. The Veteran stated that he was in good health. The examining physician noted that the Veteran had had right shoulder pain since February 1991. STRs, dated in June, July and November 1991, show that the Veteran had received treatment for right shoulder pain. DA Form 2173, Statements of Medical Examination and Duty Status associated with the Veteran's STRs, as well as his SPRs, reflect that the Veteran had developed right shoulder pain in February 1991 and that it was possibly related to having loaded cargo onto trailers. All of these reports are entirely silent as to any complaints referable to the low back coincident to the right shoulder injury. While it may be argued that the Veteran may not have mentioned back pain at the same of his initial shoulder injury, the Board finds it incredible that he would have made no mention of a back problem in these subsequent treatments, especially if the back pain had been chronic since the time of the alleged injury. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (citing Fed. R. Evid. 803 (7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded). See also Kahana v. Shinseki, 24 Vet. App. 428, 438-441 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board, as fact finder, to draw a reasonable inference). Overall, the Veteran's STRs do not show any superimposed injury or disease to the Veteran's low back coincident to the 1991 right shoulder injury. This finding is consistent with an April 2011 VA examiner's conclusion that "[t]he veteran's grade 1 spondylolisthesis did not increase in severity during service. This is less likely as not the current source of his low back pain. His lower back pain is mechanical in nature and more likely as not a result of heavy physical labor as a brick layer, age related changes, chronic SI joint dysfunction (NOT a result of or aggravation of events which occurred while in the military) and continued chronic pain following the gunshot wound." (See April 2011 VA examination spine examination report). Thus, the Board finds that this is unfavorable evidence showing that the Veteran did not have disease or injury superimposed on the preexisting L5-S1 spondylolisthesis. This opinion is uncontroverted and is against the claim. Thus, the most probative medical evidence of record shows that there was no superimposed injury to the Veteran's preexisting L5-S1 spondylolisthesis during his period of active military service. Service connection for L5-S1 spondyloslisthesis is not warranted. The Board now turns to the question of whether any other low back disorder, unrelated to the congenital L5-S1 spondylolisthesis, was caused or aggravated by a period of active military service. The Veteran has also been diagnosed as having lumbar spine degenerative joint disease with left sacroiliac dysfunction and mild degenerative joint disease of the lumbar spine. (See May 2009 VA Gulf War Guidelines and April 2011 VA spine examination reports, respectively). A review of the extensive private and VA post-service medical record reflects that these diagnoses have been attributed to a myriad of etiological causes, none of which are of service origin. For example, VA treatment reports, dated in October and November 2002 and July 2004, show that the Veteran had twisted his low back and complained of low back spasms after he was involved in a motor vehicle accident (i.e., Veteran was a pedestrian and was struck by a motor vehicle in September 2002). He also reported that his back hurt ever since he had fallen 20 feet in 1999. (See October and November 2002 and July 2004 VA treatment reports). A September 2007 VA hands, thumbs and finger examination report reflects that the Veteran reported having an onset of back pain in the early 1990s, but he denied any spine injury. This statement is in direct conflict with the Veteran's central contention that he had injured his low back coincident to a right shoulder injury during military service in 1991. An April 2008 VA physician specifically found the Veteran's degenerative lumbar changes, with primarily left sacroiliac joint dysfunction, to be secondary to leg length discrepancy as a result of a post-service right ankle fusion. (See April 2008 VA treatment report). The Veteran's statements alleging continuity of low back problems ever since he injured his low back and right shoulder during military service in 1991 are not credible and contradicted by the objective evidence of record. There were no findings referable to the low back in the Veteran's STRS, to include those associated with a right shoulder injury in 1991. The Board again emphasizes that the lack of reporting back pain at the time he was seeking care for his shoulder injury, which allegedly stemmed from the same event, weighs heavily against the veracity of his current statements. The fact that the Veteran also made no reference to the alleged 1991 back injury when he was receiving care for the post-service complaints of back pain also is negative evidence. It would have clearly been in his best interest to report such an event, as well as continuity of symptomatology, if such existed. His numerous other accounts of the source of his low back problems is additional evidence against his current assertions. Further, while not dispositive in and of itself as to the question of the Veteran's credibility, the evidence of record indicates that the Veteran did not have any low back problems until 2002, when he was involved in a motor vehicle accident. For these reasons, the Board finds that the Veteran's statements alleging continuity of low back problems since service discharge are not credible. Finally, and as previously noted herein, an April 2011 VA examiner concluded that the Veteran's lower back pain was mechanical in nature and more likely as not a result of heavy physical labor as a brick layer, age related changes, chronic SI joint dysfunction (NOT a result of or aggravation of events which occurred while in the military) and continued chronic pain following a post-service gunshot wound. (See April 2011 VA examination spine examination report). The April 2011 VA examiner's conclusion is supported by an August 2010 VA treatment report, reflecting that the Veteran complained, in part, of increased low back pain as a residual of a gunshot wound to the abdomen in October 2009. In short, the Veteran's degenerative joint disease of the lumbar spine with S1 joint dysfunction is not shown to be directly related to any aspect of military service, to include coincident to a 1991 right shoulder injury. The Board is mindful of a September 2010 statement, prepared by M. G. A., M. D., wherein he opined that it was as likely as it is not that the Veteran's back pain was a result of injuries sustained from his fall in the "First Gulf War." Reliance on a Veteran's statements renders a medical report incredible only if the Board rejects the statements of the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see also Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (Board may reject medical opinion based on facts provided by the veteran previously found to be inaccurate); Swann v. Brown, 5 Vet. App. 229, 233 (1993) (Board is not bound to accept uncorroborated account of veteran's medical history but must assess the credibility and weight of the evidence provided by the veteran rejecting it). In this case, for the reasons stated above, the Board has found the Veteran's statements regarding an in-service injury to the lumbar spine and continuity of symptomatology since that time to be not credible. Thus, as the Veteran's statements are found to be inaccurate, Dr. M. G. A.'s September 2010 conclusion is similarly without basis and of little probative value. The Board finds that the Veteran is not entitled to service connection for a low back disability based on the finding of a chronic disease as there is no evidence of degenerative joint disease of the lumbar spine manifested to a compensable degree within a year of service discharge, or on the basis of continuity of symptomatology. Here, the most probative evidence of record shows that his chronic low back disorder began several years after service in conjunction with the Veteran having been involved in a motor vehicle accident in 2002. X-ray interpretations of the Veteran's lumbar spine, performed by Hennepin County Medical Center in December 2009, show that the Veteran had normal alignment of the lumbar spine and good preservation of the joint spaces at L1-5. (See December 2009 x-ray interpretations of the lumbar spine, performed and submitted by Hennepin County Medical Center). Thus, the Veteran is not entitled to service connection based on the finding of a chronic disease, or on the basis of continuity of symptomatology, because there is no evidence of degenerative joint disease of the lumbar spine having manifested during service or within one year of discharge. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Overall, the most probative medical evidence of record shows that there was no superimposed injury to the Veteran's preexisting L5-S1 spondylolisthesis and no relationship between any current degenerative joint disease with chronic S1 joint dysfunction and a period of military service. The preponderance of the medical evidence is against an award of service connection. The benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claim is denied. ORDER Service connection for lumbar spine disorder, to include spondylosisthesis of L5-S1 and degenerative joint disease with chronic S1 joint dysfunction. REMAND Unfortunately, the Veteran's claim for a thyroid disorder or Grave's disease, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or as due to radiation exposure and exposure to toxic chemicals must be remanded. The Board sincerely regrets the additional delay, but adjudication cannot proceed without further development on the radiation component of this claim. The Veteran contends that his thyroid disorder or Graves Disease was aggravated, in part, by in-service exposure to depleted uranium during his service in Iraq and Kuwait from January to July 1991 while assigned to the 542 Transportation Company. Specifically, he maintains that he hauled tanks that been blown up with white phosphorous. (See Radiation Risk Activity Information Sheet, received by the RO in April 2006; VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in February 2009 and T. at pg. 4). The Veteran's service personnel records, to include his DD 214 reflect that he served in Southwest Asia from December 27, 1990 to June 28, 1991 and that he was assigned to the above-cited unit. 3.309(d) of Title 38 of the Code of Federal Regulations provides for presumptive service connection of certain diseases for "radiation-exposed veterans." 38 C.F.R. § 3.309(d) (2012). Thyroid cancer is one of these diseases. Id. The Veteran has not been diagnosed with thyroid cancer. Thus, this regulation is not for application. In addition, thyroid cancer, as well as "non-malignant thyroid nodular disease," are considered radiogenic diseases that are entitled to special development procedures under 38 C.F.R. § 3.311(c) if they first manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(1) and (5)(iv) (2012). As noted above, the Veteran has not been diagnosed with thyroid cancer, nor has he been found to have a "non-malignant thyroid nodular disease." Thus, this regulation is also not for application. Id. Nevertheless, under Combee, supra, the Veteran's assertion that his thyroid disorder/Graves Disease is, in part, the result of in-service radiation exposure must be reviewed to determine whether service connection can be established on a direct basis. In support of the claim, the Veteran's representative pointed to a website, www.gulflink.osd.mil/forces in hazard 00.htm, reflecting that the Veteran's unit, the 542nd Transportation Company, had been exposed to multiple chemicals from the Khamisiyah demolition. (See Veteran's representative's October 2011 Informal Hearing Presentation, pg. 2). Pursuant to 38 C.F.R. § 3.11(a)(2) (2012), radiation dose data information shall be requested from the Department of Defense for claims based on participation in atmospheric nuclear testing or the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. See 38 C.F.R. §§ 3.311(a)(2)(i) and (ii) (2012). In all other claims, such as here, any available records concerning the Veteran's exposure to radiation during service shall be requested. See 38 C.F.R. § 3.311(a)(2)(iii) (2012). These records normally include, but are 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. Id. After being obtained, all such records shall (italics added for emphasis) be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. Id. The Veteran does not contend that he participated in atmospheric nuclear testing or the American occupation of Hiroshima or Nagasaki, Japan. Rather, he contends that he was exposed to depleted uranium during service in Iraq and Kuwait from January to July 1991 while assigned to the 542 Transportation Company. As such, the provisions of 38 C.F.R. § 3.311(a)(2)(iii) (2012) are applicable to his claim. In the instant case, the RO requested DD Form 1141 and any other records related to radiation exposure, and was informed no such records exist. (See May 2006 records request with June 2006 response). However, the claims files were not referred to the Under Secretary for health for preparation of a dose estimate as specifically required by 38 C.F.R. § 3.311(a)(2)(iii). Such may seem inherently illogical. However, as indicated, the regulations provide no alternative. As such, the Board must remand the instant case. The Veteran's claims files should be forwarded to the Under Secretary for Health for a radiation dose estimate. Accordingly, if the dose estimate prepared by the Under Secretary for Health indicates that the Veteran had in-service exposure to radiation, this referral additionally shall be made on remand. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's personnel records and other pertinent documents to the VA Under Secretary for Health for a dose estimate, in accordance with 38 C.F.R. § 3.311(a)(2)(iii) (2012). 2. If it is determined the Veteran was exposed to ionizing radiation, forward the Veteran's claim to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c) (2012). 3. Readjudicate the claim for service connection for a thyroid disorder or Grave's disease, to include as a qualifying chronic disability under 38 C.F.R. § 3.317 or as due to radiation exposure and exposure to toxic chemicals. If the benefit sought on appeal is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2011). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs