Citation Nr: 1315710 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 05-32 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for disability due to thyroiditis to include as due to ionizing radiation. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1988. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, sent to the Veteran by the RO in North Little Rock, Arkansas, which denied the Veteran's claims for service connection. In January 2008 the Board denied the claim for service connection for pancreatitis and remanded the thyroiditis claim to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In his October 2005 VA Form 9, the Veteran raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). Also, in July 2011 correspondence the Veteran raised the issue of entitlement to an increased rating for his service-connected long thoracic nerve paralysis, right upper extremity (major) associated with residuals, compression fracture thoracic spine with degenerative changes and residuals, compression fracture thoracic spine with degenerative changes. The Veteran also appeared to raise the issue of entitlement to service connection for eye problems due to nerve medications issued by the VA. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board previously referred the TDIU claim to the RO in January 2008. To date, however, the RO has not taken any action on this claim or the July 2011 claims. Therefore, the Board does not have jurisdiction over these claims and they are referred again to the AOJ for appropriate action. 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 As was noted in the January 2008 Board remand, the Veteran claims entitlement to service connection for Hashimoto's thyroiditis with a benign right nodule, due to radiation exposure while he was a laboratory technician in service. A veteran may be service-connected directly under the special framework of 38 C.F.R. § 3.311 if the claimed disorder is a radiogenic disease. A "radiogenic disease" means a disease that may be induced by ionizing radiation, and must become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(2), (5). A non-malignant thyroid nodular disease such as the veteran's is considered a radiogenic disease under 38 C.F.R. § 3.311. The Veteran was diagnosed with this disease in October 2004, sixteen years after discharge from service. As the threshold requirements for service connection under 38 C.F.R. § 3.311 were met, the Board found that an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). Specifically, the Board requested that the RO 2. Submit a request for any records of occupational exposure to ionizing radiation to the Air Force Radiation Protection Division. This request should include the [V]eteran's DD Form 1141, MPRJ, additional service medical records, records from any laboratory in which the [V]eteran worked, and any other record that contains radiation exposure information. These records should be associated with the claims file. If these records cannot be obtained, then evidence of attempts to obtain them should be associated with the claims file. 3. When the above development is completed and any available evidence identified by the [V]eteran is obtained, request that Defense Threat Reconstruction agency (DTRA) provide a radiation dose estimate for the [V]eteran. In constructing the estimate, DTRA should be requested to review the [V]eteran's claims file, including the [V]eteran's statement regarding his radiation exposure and any evidence of radiation exposure obtained as the result of the development outlined above. In response to the January 2008 Board remand, the RO wrote to the Air Force Medical Support Agency in July 2011 requesting records of occupational radiation exposure for the Veteran. In an August 2011 response, the Air Force Medical Support Agency wrote that the office had queried the occupational radiation exposure monitoring records in the USAF (United States Air Force) Master Radiation Exposure Registry (MRER) for the Veteran and found no external or internal radiation exposure data for the Veteran. It was indicated that the MRER was the single repository for occupational radiation exposure monitoring for all Air Force personnel and, even though, the records dated back to 1947, there appeared to have been cases where early records, especially DD Form 1141, were maintained in the individual's military medical record or by the local unit and were not forwarded for inclusion in the central repository. Thereafter, the RO wrote to the DTRA requesting a radiation dose estimate for the Veteran. In a February 2013 response, the DTRA wrote that per Title 38, Code of Federal Regulations (38 C.F.R.) 3.311(a)(2)(i) and (ii), the scope of the Nuclear Test Personnel Review (NTPR) Program was limited to providing information regarding the activities and radiation exposure histories of individuals who participated in U.S. atmospheric nuclear tests (1945 to 1962) and the occupation of Hiroshima and Nagasaki, Japan, following World War II. Exposure to radiation from sources other than U.S. atmospheric nuclear testing or the occupation of Hiroshima and Nagasaki is beyond the purview of DTRA's office. The DTRA specifically wrote, "For information on radiation exposure from sources other than nuclear testing or the occupation of Hiroshima or Nagasaki, we suggest you send your inquiry to: U.S. Air Force Radiation Dosimetry Laboratory, ATTN: Mr. Gerald M. Achenback, 2510 5th Street, Area B, Building 0840, Wright-Patterson Air Force Base, Ohio, 45433-7212. That office is responsible for maintaining occupational dosimetry data for Air Force personnel." Unfortunately, the RO never wrote to the U.S. Air Force Radiation Dosimetry Laboratory as was suggested by the DTRA. As such, on remand, an attempt should be made to verify the Veteran's alleged occupational exposure to ionizing radiation by contacting the U.S. Air Force Radiation Dosimetry Laboratory. Accordingly, the case is REMANDED for the following action: 1. Submit a request for any records of the Veteran's alleged occupational exposure to ionizing radiation to U.S. Air Force Radiation Dosimetry Laboratory, ATTN: Mr. Gerald M. Achenback, 2510 5th Street, Area B, Building 0840, Wright-Patterson Air Force Base, Ohio, 45433-7212. 2. If, and only if, the above request results in confirmation of the Veteran's alleged occupational exposure to ionizing radiation, request that DTRA provide a radiation dose estimate for the Veteran. In constructing the estimate, DTRA should be requested to review the Veteran's claims file, including the Veteran's statement regarding his radiation exposure and any evidence of radiation exposure obtained as the result of the development outlined above. Thereafter, consider a possible referral, pursuant to 38 C.F.R. § 3.311(a)(2)(iii), to the Undersecretary for Health to determine whether a medical opinion or referral to an outside consultant for a medical opinion is necessary. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The appellant 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).