Citation Nr: 1329288 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-14 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a gastrointestinal disorder, diagnosed as colitis, Crohn's disease and/or colon cancer, to include as secondary to service-connected bipolar disorder, and to include as due to ionizing radiation exposure. ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active military duty from September 1986 to October 1989. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had requested a hearing before the Board, which was scheduled in October 2010. However, the Veteran failed to appear. In a January 2011 statement, the Veteran requested that his hearing be rescheduled as he had not received notice of the previous hearing because it had been sent to the wrong address. Nevertheless, in response to an August 2013 Board letter seeking clarification as to whether he wanted a hearing, the Veteran responded that he did not wish to appear at a hearing. As such, the Board finds that the Veteran's hearing request has been withdrawn. 38 C.F.R. § 20.702(d) (2012). The Board remanded the case in December 2010 and August 2012 for further development. As the Board previously noted, the Veteran had previously been represented by a private attorney, but the attorney withdrew his representation. As was the case in the prior remands, the Veteran remains unrepresented in his claim and appeal before the Board. The Veteran has submitted additional evidence that has not been considered by the RO. Nevertheless, in light of the need to remand for other matters, the RO will have the opportunity to consider such evidence. In recent statements, the Veteran has indicated that his chronic ulcerative colitis has progressed to rectal cancer. In support of this statement, he has submitted VA treatment records dated in July 2013 showing a diagnosis of invasive colonic adenocarcinoma, arising in a background of chronic active colitis with high-grade dysplasia. The U. S. Court of Appeals for Veterans Claims (Court) has found that the use of 'condition(s)' in regulation 38 C.F.R. § 3.159(a)(3) indicates that a single claim can encompass more than one condition and that an appellant can reasonably expect that alternative current conditions within the scope of the filed claim will be considered. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the issue as set forth on the front page of this decision to include colon cancer. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran's Virtual VA electronic record has also been reviewed in conjunction with the Veteran's claim. 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 Inasmuch as the Board sincerely regrets the additional delay of the adjudication of this matter, a remand is necessary before the issue on appeal can be adjudicated. Initially, in its most recent supplemental statement of the case issued in March 2013, the RO indicated that it had reviewed VA treatment records from the Tampa Bay, Florida VA Medical Center (VAMC) up to February 2013. However, a review of the claims file and the Veteran's Virtual VA electronic record only includes records dated to September 2012. The Board observes that additional treatment records were subsequently added in June 2013, but only includes records dated that month pertaining to a sleep study. As such, this case must be returned to the RO to associate additional VA treatment records with the record. As VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records dated from September 2012 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, the Veteran has asserted that his gastrointestinal disability is due to radiation exposure in service. Specifically, he asserts that he was exposed to ionizing radiation while working on submarines. 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). Colon cancer 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 July 2013, approximately 24 years after discharge from service. As the threshold requirements for service connection under 38 C.F.R. § 3.311 are met, an assessment as to the size and nature of the radiation dose must be made. 38 C.F.R. § 3.311(a)(1). In order to do so, dose information must be requested, as provided by 38 C.F.R. § 3.311(a)(2). Thereafter, the claim should be referred to the Undersecretary for Health to determine whether a medical opinion or referral to an outside consultant for a medical opinion is needed, if appropriate. 38 C.F.R. § 3.311(b)(1)(iii). The Veteran's service personnel records have been associated with the record and do show that he was in submarine school. However, the records do not contain a DD Form 1141, Exposure to Ionizing Radiation. The RO should request from the National Personnel Records Center (NPRC) or any other appropriate records repository for any additional records pertaining to exposure to ionizing radiation, to include a DD Form 1141. Moreover, the Board observes that the Veteran has consistently reported that he received treatment for his disability at Oak Hill Hospital in 1993. Recently, in support of his contention, he submitted a November 2012 letter from this hospital indicating that he was treated at this facility from September 13 -18, 1993. However, this statement is silent as to what disability or disease the Veteran received treatment. As these records are pertinent to the Veteran's claim, the RO should contact the Veteran to obtain appropriate authorization so that these records can be obtained. See 38 C.F.R. § 3.159(c)(1). Further, on remand, the Veteran was afforded a VA examination in January 2013. The examiner determined that the Veteran's gastrointestinal disability was not related to service. However, the examiner appeared at least in part to base this opinion on the fact that the Veteran did not present to the VA with significant medical problems until 2007. However, VA treatment records document that the Veteran initially presented to the VA approximately in February 2005 reporting a history of Crohn's disease for many years. Thus, an addendum opinion is required to address whether this fact as well as any additional records associated with the claims file in anyway alters the examiner's prior opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination when developing a service- connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). If the same examiner is not available, the RO should obtain an addendum opinion from another appropriate examiner. Lastly, the Board observes that the Veteran has not been provided notice with respect to the information and evidence required to support a claim for a radiogenic disease in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED for the following actions: Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Additional VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must be provided to the Veteran, including an explanation of the evidence required to support a claim for a radiogenic disease, including medical opinion evidence. 2. Obtain additional VA treatment records from September 2012 to the present. 3. Contact the Veteran and obtain appropriate authorization so that the September 1993 treatment records from Oak Hill Hospital can be obtained. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Submit a request to the NPRC or any other appropriate federal records repository for any records pertaining to occupational exposure to ionizing radiation, to specifically include the Veteran's DD Form 1141. 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. 5. When the above development is completed and any available evidence identified by the Veteran is obtained, request that Defense Threat Reconstruction agency (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. 6. After the above development has been completed, appropriate further development should be undertaken, to include 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. 7. After additional development has been accomplished, the claims file should be returned to the VA examiner who conducted the January 2013 VA examination for an addendum opinion as to whether any of the additional evidence associated with the record in any way alters his previous opinion. Moreover, the examiner mistakenly indicated that the Veteran did not present to the VA with significant medical problems until 2007. However, VA treatment records document that the Veteran initially presented to the VA in approximately February 2005 reporting a history of Crohn's disease for many years. Thus, in the addendum, the examiner should also address this fact and determine whether it also in any way alters his prior opinion. A detailed rationale for all opinions expressed should be given. If the same examiner is not available, the claims file should be sent to another appropriate examiner for an addendum opinion, and an examination at the discretion of the new examiner. 8. After completing the above actions, 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. After the Veteran has 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 or matters 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).