Citation Nr: 1342972 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 03-18 492A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for hypothyroidism and macular degeneration, to include as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board previously remanded this appeal in January 2008 and April 2011. In October 2007, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Board has reviewed the electronic records in Virtual VA and the Veterans Benefits Management System in the preparation of this remand. The issue of entitlement to service connection for a lung disability has been raised but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 contends that he is entitled to service connection for hypothyroidism and macular degeneration, to include as secondary to exposure to ionizing radiation, on the basis that in his work as a weapons and jet mechanic during service, he was involved with loading atomic bombs resulting in exposure to radiation. This exposure, it is asserted, caused hypothyroidism and macular degeneration. He has indicated that this work took place at an Air Force base in Georgia, and that he wore a dosimeter badge. As noted in the 2008 remand, while current review of the Veteran's service personnel records does not confirm exposure to radiation as part of his military duties, he testified in 2007 that he was issued a dosimeter badge at Turner Air Force Base. His service treatment records do show that he was a weapons mechanic at Turner Air Force Base in Georgia in 1955. He also testified as to his work around atomic bombs in his work as a weapons and jet mechanic during service. He has indicated that the presence of atomic weapons and his work around them in Georgia was "Top Secret" at the time it was done. As a result instructions in prior Board remands, VA received a June 2009 statement from the Chief, Radiation Programs Operations, of the United States Air Force. While this statement indicated that there was "no external or internal radiation exposure" for this Veteran, it was determined that he had the potential to be exposed to ionizing radiation from his duties as a weapons mechanic. The Air Force Safety Center provide an estimated maximum total effective dose equivalent, or sum of external and internal dose for the Veteran of approximately 840 mrem for nuclear debris collection activities over a four year period. Following receipt of information verifying that the Veteran had in-service exposure to radiation, VA was bound to forward the file to the Undersecretary for Benefits for a radiation dose estimate and an opinion, and also to a VA examiner for a medical opinion as to whether it was at least as likely as not the Appellant had thyroidism and/or macular degeneration that was due to exposure to ionizing radiation in service or otherwise related to the Appellant's military service. The Board remanded the claim in April 2011 because VA had not accomplished this development; despite the most recent remand instructions, VA still has not adequately complied. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Although VA requested such an opinion from the Undersecretary for Benefits in May 2013, only the letter send to the Undersecretary is of record; there is no reply or opinion in the claims file. VA also requested a dose estimate and an opinion from the United States Nuclear Regulatory Commission in May 2013. Although such a request was not included in the Board's most recent remand instructions, as VA has begun this development, it should be completed. Finally, the VA examination obtained in July 2013 must be returned to the examiner for an addendum. The Board requested the examination in the most recent remand, and specifically instructed that the examiner must opine as to, in pertinent part, whether the hypothyroidism disability had its onset in service. The examiner provided the requested opinion, but only relied on the lack of medical documentation in the claims file of an in-service diagnosis, and failed to address the Veteran's contentions (see Hearing Testimony of October 2007, July 2001 VA general medical examination) that his symptoms began prior to his separation from active duty. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination report was inadequate where an examiner failed to comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain and associate with the claims file any reply from the Undersecretary of Health related to the May 2013 request for a dose estimate and opinion. If no reply was received, forward the radiation dose data to the Under Secretary for Health again to obtain a radiation dose estimate and for an opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not (50 percent probability or greater) that the Veteran's hypothyroidism and macular degeneration resulted from exposure to radiation in service. Associate any response with the claims file. All efforts to obtain the requested information must be documented and associated with the claims file. 2. Obtain and associate with the claims file any reply from the United States Nuclear Regulatory Commission related to the May 2013 request for a dose estimate and opinion. If no reply was received, resend the request to the United States Nuclear Regulatory Commission to obtain a radiation dose estimate and for an opinion as to whether sound scientific and medical evidence supports the conclusion that it is at least as likely as not (50 percent probability or greater) that the Veteran's hypothyroidism and macular degeneration resulted from exposure to radiation in service. Associate any response with the claims file. All efforts to obtain the requested information must be documented and associated with the claims file. 3. After completing the foregoing, return the claims file to the examiner who provided the July 2013 opinion concerning the etiology of the Veteran's hypothyroidism. That examiner must review the claims file, the prior medical opinion, this remand, and any relevant evidence associated with Virtual VA; the ensuing addendum must indicate that the requested review occurred. The examiner must provide an addendum opinion regarding the question of whether the Veteran's hypothyroidism was at least as likely as not (a 50 percent probability or greater) incurred during active duty, to include consideration of the Veteran's competent report of the onset of symptoms prior to separation from service. The examiner must provide a complete rationale for the requested opinion. If such an opinion cannot be provided without resort to speculation, the examiner must explain why such an opinion would be speculative. If the July 2013 examiner is unavailable, the opinion must be obtained from a similarly qualified physician. A new examination should be scheduled only if additional examination is necessary to provide the requested opinion. 4. After the development requested has been completed, the RO should review the opinions obtained to ensure that they are in complete compliance with the directives of this REMAND. If the opinions are deficient in any manner, the RO must implement corrective procedures at once. 5. Then, readjudicate the appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ MICHAEL D. LYON 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).