Citation Nr: 1602456 Decision Date: 01/21/16 Archive Date: 01/28/16 DOCKET NO. 14-22 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for hypothyroidism, to include as due to radiation exposure. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to December 1986 and from October 2001 to June 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Louisville, Kentucky Department of Veterans Affairs (VA) Regional Office (RO). A review of the claims file includes a review of the paper file, Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board initially observes that hypothyroidism is not a disease for which service connection may be presumed as it is neither: (1) one of the diseases listed in 38 U.S.C.A. § 1112(c) or 38 C.F.R. § 3.309(d), which the VA Secretary has determined that a positive association with radiation exposure exists; nor (2) a "radiogenic disease" (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311(b) or established by competent scientific or medical evidence to be a radiogenic disease). See 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.311. Accordingly, this claim will continue to be developed on a direct service connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). Although a December 2012 deferred rating decision reflects that that a formal finding of unavailability was necessary for the Veteran's service treatment records for the second period of his active service, a formal finding of unavailability with respect to these records is not in the claims file. Therefore, upon remand, issue a formal finding of unavailability of the Veteran's service treatment records for the second period of his active service should be prepared and this document should be associated with the claims file. In considering the current medical evidence of hypothyroidism, the Veteran's lay assertions that hypothyroidism may have been caused by his exposure to radiation in service and the service personnel records demonstrating he served as a radiation safety officer from October 2001 to February 2003, at which time he performed radiation surveys and receipts of Chemical Defense Equipment and Depleted Uranium shipments and munitions, the Board finds that a VA examination and opinion regarding the etiology of the Veteran's hypothyroidism is necessary. McLendon, 20 Vet. App. 79, 83 (2006); Locklear, 20 Vet. App. 410 (2006); Waters, 601 F.3d 1274, 1276 (2010). As the record reflects the Veteran has received continuing treatment at VA, any outstanding and current ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Please issue a formal finding of unavailability of the Veteran's service treatment records for the second period of his active service and associate the document with the claims file. 2. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies, including especially any outstanding VA medical records. 3. Upon receipt of all additional records, schedule the Veteran for a VA examination of his thyroid condition. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the Veteran's thyroid condition should consist of all necessary testing, including endocrinology reports. The examination report is to contain a notation that the examiner reviewed the claims file to include: (1) service personnel records demonstrating that the Veteran served as a radiation safety officer from October 2001 to February 2003, at which time he performed radiation surveys and receipts of Chemical Defense Equipment and Depleted Uranium shipments and munitions; (2) the post-service private VA medical records, demonstrating treatment and diagnosis for hypothyroidism; and (3) the January 2006 private treatment record demonstrating the Veteran had reported being diagnosed with hypothyroidism a year earlier, approximately in January 2005, within two years of his separation from active service. Please note that the service treatment records from the Veteran's second period of active service are unavailable. Please also note, the Veteran is competent to attest to any lay observable symptoms witnessed and past treatment rendered. The examiner is asked to answer the following: (a). Please specify all current thyroid condition diagnosis(es). (b). Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed thyroid conditions, to include hypothyroidism: (i) had its onset during his periods of active duty from August 1986 to December 1986 and from October 2001 to June 2003; or, (ii) that such disorder was caused by any incident or event that occurred during such period (i.e. his duties as a radiation safety officer from October 2001 to February 2003, at which time he performed radiation surveys and receipts of Chemical Defense Equipment and Depleted Uranium shipments and munitions). Please explain the reasons for any opinions rendered and include a discussion of the relevant evidence. 4. Ensure the examiner's opinions are responsive to the determinative issues of etiology of the thyroid condition in this appeal. If not, return the report(s) for all necessary additional information. 38 C.F.R. § 4.2. 5. Then readjudicate this claim in light of this and all other additional evidence. If the claim continues to be denied or is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. 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 2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).