Citation Nr: 1330373 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-12 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for thyroid cancer, to include as due to ionizing radiation. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and His Spouse ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to July 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in November 2007 and February 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied service connection for bilateral hearing loss and thyroid cancer, to include as due to ionizing radiation, and denied service connection for hypertension, respectively. A claim of entitlement to service connection for a low back disorder had also been perfected. However, in an October 2011 rating decision, such claim was allowed. Accordingly, that issue is no longer in appellate status. In March 2013, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. 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 service connection for bilateral hearing loss disability. Noise exposure in service has been conceded based on the Veteran's duties, but on May 2011 VA examination his hearing loss did not satisfy the VA standard for hearing loss disability under 38 C.F.R. § 3.385. At the March 2013 hearing, the Veteran testified that his hearing acuity had decreased since that examination. As such, he is entitled to an additional VA examination to determine if his audiometric readings currently meet the criteria of 38 C.F.R. § 3.385. The Veteran also seeks service connection for thyroid cancer, which was diagnosed and surgically treated in 2004. He contends that he was exposed to ionizing radiation during his service in the Navy, to include during a period of two years working on tugboats moving nuclear submarines within harbors. The RO requested information regarding any dosimetry readings for the Veteran during service, and the Navy replied that no such readings had been completed because radiation exposure was not shown. However, the Veteran is considered competent to provide evidence and testimony as to his personal experiences, including his assignment aboard a tugboat assigned to assist the movement of nuclear submarines. 38 C.F.R. § 3.159. Moreover, his statements are consistent with the evidence of record regarding the circumstances of his active duty service. Under the provisions of 38 C.F.R. § 3.311, where the Veteran has claimed exposure to radiation and the record establishes a radiogenic disease, all documents related to that claim should be forwarded to the Under Secretary of Health to obtain a dose estimate to the extent possible. While the record does not contain a DD Form 1141, the Veteran's competent testimony of radiation exposure is sufficient to justify a referral to the Under Secretary on remand. In addition, the Veteran has reported treatment at Bethesda Naval Hospital during 1993 and 1994 which may be related to his diagnosis of thyroid cancer after service. Additionally, he appears to have received treatment at the Coast Guard medical facility in Mobile, Alabama. Any such records should be sought from the proper records custodian and associated with the claims file prior to forwarding it to the Under Secretary. Finally, the Veteran claims service connection for hypertension and has asserted that he was treated for hypertension, to include with prescription anti-hypertensive medication, while still in service. It appears that the above-mentioned potentially outstanding records are relevant to this claim as well. Accordingly, the case is REMANDED for the following action: 1. Ask the appropriate federal records custodian(s) to obtain any inpatient treatment records, military treatment records, or private treatment records for the period of the Veteran's military service, which may be held in federal archives or other facilities based on treatment received at the Coast Guard medical facility in Mobile, Alabama, at Bethesda Naval Hospital, and elsewhere. Specific parameters for the search, including applicable date ranges, should be obtained from the Veteran's service personnel records and, failing that, from the Veteran. If, after all due diligence, it is determined that the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. Develop the thyroid cancer claim in accordance with the provisions of 38 C.F.R. § 3.311, to include obtaining a dose estimate that considers the Veteran's two years of service aboard a tugboat charged with moving nuclear submarines within the harbor. If a dose estimate can be obtained, then the claim should be forwarded for review by the Under Secretary for Benefits to determine if it is at least as likely as not that the in-service radiation exposure. 3. Following the above, arrange for an examination to obtain an opinion as to whether the Veteran's symptoms treated at Bethesda Naval Hospital, reported by him as dizziness, difficulty with balance, persistent cough, and trouble sleeping demonstrate that the Veteran's thyroid cancer was at least as likely as not (probability 50 percent or greater) present during his military service or was otherwise caused or aggravated thereby. In the event of an examination, the provider should be furnished a copy of the complete claims file for review. The provider should state the rationale for any opinion(s) provided. 4. Provide the Veteran a VA audiological examination to assess his present hearing acuity, determine whether it satisfies the requirements for a VA hearing loss disability under 38 C.F.R. § 3.385, and, if a hearing loss disability is shown, obtain an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that such hearing loss disability was incurred by his military service, to include the conceded noise exposure based on his military occupational specialty (MOS). The examiner should provide the rationale for any opinion(s) rendered. A copy of the claims file should be provided to the examiner for review. 5. On completion of the foregoing, the claim should be adjudicated. If any aspect of the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. 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. 2013). _________________________________________________ Eric S. Leboff 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) (2013).