Citation Nr: 1753384 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-26 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as due to herbicide (Agent Orange) exposure and as due to radiation exposure. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Robert A. Laughlin, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD P.S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Coast Guard from January 1962 to November 1969. Subsequently, he also served in the U.S. Coast Guard Reserve from 1978 to 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2007, April 2009, September 2011, and January 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. (The appeal itself originates from a service connection claim for a skin disorder that has been pending since August 2006. In the earlier July 2015 Board remand, the Board explained that the skin disorder issue was being automatically reconsidered under the provisions of 38 C.F.R. § 3.156(c). To clarify, subsequent to the issuance of the previous April 2007 and April 2009 rating decisions, which had denied service connection for a skin disorder, additional relevant service department records were associated with the claim file. As such, finality did not attach to these ratings decisions. It follows that the service connection issue for a skin disorder has been pending and on appeal since August 2006). In March 2013, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). In April 2015, the Veteran and his spouse presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. In July 2015, the Board remanded the appeal for further development. The case has since been returned to the Board for appellate review. The issue of service connection for a skin disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran is service-connected for the following disabilities: depression with anxiety, rated as 30 percent disabling; ischemic heart disease, rated as 30 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; right leg peripheral arterial disease, rated as 20 percent disabling; peripheral neuropathy of both lower extremities, each rated as 10 percent disabling; and erectile dysfunction, rated as 0 percent disabling. The combined service-connected disability rating with consideration of the bilateral factor is 80 percent. Therefore, the schedular percentage criteria for TDIU are met. 2. The schedular percentage criteria for TDIU have been met since May 29, 2012, with combined service-connected disability ratings of 70 percent and then 80 percent. 3. The combination of the Veteran's service-connected disabilities, but not any one single disability alone, prevents him from securing or following a substantially gainful occupation consistent with his work and educational background. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.17, 4.19, 4.25, 4.26 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant TDIU claim. However, the Veteran was provided adequate VCAA notice for the TDIU claim in October 2013 and February 2016 letters. For the TDIU claim on appeal, the Veteran has contended that there is a duty to assist error with regard to the November 2014 VA examinations and opinions. The Veteran believes these VA examinations were inadequate with respect to the TDIU claim, in that they failed to properly address the Veteran's inability to secure or engage in substantially gainful employment. See e.g., Veteran's arguments contained in January 2015 VA Form 9. Regardless, in the present decision, the Board is granting the TDIU issue on appeal. Therefore, the benefits sought on appeal have been granted in full for the TDIU issue. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to the TDIU issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. TDIU Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is currently 76 years of age. He retired from the U.S. Coast Guard Reserve in 1993. Post-service, as a civilian, he also worked full-time as a police officer for 25 years with the Omaha City Police Department until 1995. From 1995 to 2005, he worked full-time as a security guard at Omaha Public Schools. He retired from both full-time positions permanently in 2005 due to age or duration of work. In addition, he worked part-time three days a week in 2011 and 2012 as a groundskeeper and security guard for the Omaha Zoo. This was clearly part-time marginal employment. He had to quit this job in 2012 because the employer took away his golf cart, which had permitted him to get around and do his job. His level of education is two years of college in the police academy. His hobbies include writing and photography, but neither generates any substantial income. In this case, with regard to lay evidence, the Veteran contends that he is prevented from performing substantially gainful employment due to the combination of his service-connected disabilities. He asserts that his service-connected disabilities to include diabetes mellitus, ischemic heart disease, right and left leg peripheral neuropathy and peripheral arterial disease, and depression with anxiety have worsened over the years, and prevent any type of physical or sedentary employment. The combination of these service-connected disabilities cause severe symptoms such as low blood sugar, chest pain, shortness of breath, fatigue, dizziness, loss of balance, and numb and painful lower extremities. He had a heart attack in 2005, which precipitated his retirement from full-time work. He cannot walk for long periods of time, and when he does, he walks slowly. Climbing stairs is difficult. Bending and lifting are a struggle. He cannot perform any strenuous or physical work. He has no stamina. He also cannot sit beyond 30 minutes without leg pain. Thus, he explains he is not capable of sedentary desk work as well. His previous vocational history involved jobs that required him to physically move around. He underwent three heart stent procedures, the last being in November 2014. Also, his anxiety and depression cause him to be scared of crowds. He credibly maintains he has worked his entire life and still desires to work, but he is no longer able due to his service-connected disabilities. See March 2013 DRO hearing at pages 21-27; April 2015 Travel Board hearing at pages 24-41; October 2013 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability); October 2013 and February 2016 Veteran statements; November 2013, January 2015, February 2016, and May 2016 attorney letters; June 2014 NOD; and January 2015 VA Form 9. The Veteran is service-connected for the following disabilities: depression with anxiety, rated as 30 percent disabling; ischemic heart disease, rated as 30 percent disabling; type II diabetes mellitus, rated as 20 percent disabling; right leg peripheral arterial disease, rated as 20 percent disabling; peripheral neuropathy of both lower extremities, each rated as 10 percent disabling; and erectile dysfunction, rated as 0 percent disabling. The combined service-connected disability rating is 80 percent, with consideration of the bilateral factor. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Moreover, the Board emphasizes that the schedular percentage criteria for TDIU have been met since May 29, 2012, with a combined service-connected disability ratings of at least 70 percent. See 38 C.F.R. §§ 4.25, 4.26. Consequently, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In the present case, the evidence of record supports the award of a TDIU rating. As noted above, the Veteran has submitted credible lay statements and hearing testimony in March 2013 and April 2015 attesting to the current severity of the combination of his service-connected disabilities and their severe impact on his ability to function in a work setting, be it either physical or sedentary work. Moreover, as to the medical evidence in support of the TDIU claim, the Board has reviewed VA treatment records, private treatment records, VA Vet Center records, VA examinations, and VA Forms 21-4192 (Requests for Employment Information in Connection With Claim for Disability Benefits), as completed by the Veteran's former employers. These records confirm that the Veteran would not be able to perform occupational duties requiring physical activity or stress, as a result of his service-connected heart, diabetes mellitus, and lower extremity peripheral neuropathy disabilities. He has undergone three stent procedures and has experienced a myocardial infarction. He becomes dizzy and weak with sustained exertion. The Board will not discuss these records in extensive detail, but only proffer that they establish the combination of his service-connected disabilities prevents substantially gainful employment. The Board finds that all of the above evidence is entitled to significant probative value in support of the Veteran's claim. In short, there is clear, credible, and probative medical and lay evidence in support of the claim for entitlement to TDIU. The Board acknowledges that the Veteran appears able to perform certain aspects of daily living at his home and outside of his home. However, the law recognizes that a person may be too disabled to engage in employment, although he or she is fairly comfortable at home or upon limited activity, such as the Veteran in this case. See 38 C.F.R. § 4.10. A Veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award. See 38 C.F.R. § 3.340(a); Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The Board has also considered the fact that the Veteran worked part-time as a security guard and groundskeeper at the Omaha Zoo in 2011 and 2012, and part-time sporadically after 2005. He also has written a few books for no remuneration. However, he credibly indicates he was not able to work a full 40-hour week due to his service-connected disabilities. It is important to emphasize that the ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Thus a TDIU may still be awarded in such instances. Where reasonably raised by the facts of a particular case, the Board must address the issue of whether the Veteran's ability to work might be limited to marginal employment and, when appropriate, explain why the evidence does not demonstrate that the Veteran is incapable of more than marginal employment. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). In the present case, the Board has determined that the veteran's part-time employment sporadically from 2005 to 2012 as a part-time security guard and groundskeeper is considered marginal employment, but not substantially gainful employment. Marginal employment is consistent with a finding of unemployability for TDIU purposes. The record indicates that sometimes the Veteran worked 20 hours per week at most from 2005 to 2012. An April 2015 Social Security Statement confirms the Veteran did not earn more than $5,000 a year in taxable earnings during from 2005 to 2012. This income is way below the poverty threshold. It is a credit to the veteran that he at least tried to work, and that he wanted to work. But it is apparent from the record that any part-time marginal employment the Veteran engaged in from 2005 to 2012 does not constitute substantially gainful employment. Finally, the Board has considered several VA medical opinions of record indicating the Veteran can still perform sedentary-type work. See e.g., January 2014 VA consult; November 2014 VA medical opinion for TDIU. However, in contrast, the other medical and lay evidence of record establishes that his previous education and work experience would hinder sedentary employment in an office setting. Post-service, the Veteran has worked a police officer and a security guard and a groundskeeper. These jobs involved a physical and active, as opposed to a sedentary, work environment. The Veteran has a two-year vocational school education at the police academy, with no other reported special training. The Board has considered the Veteran's functional capacity, age, and work experience, in determining that sedentary employment would not be appropriate for this Veteran. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A determination of the veteran's entitlement to TDIU is considered in the context of the individual veteran's capabilities regardless of whether an average person would be rendered unemployable under the same circumstances. Thus, the criteria for determining unemployability include a subjective standard. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317 (1992). Even without consideration of the effects of his age (76) and nonservice-connected disorders, the evidence of record clearly shows the Veteran's service-connected disabilities, standing alone, prevent him from securing employment. 38 C.F.R. § 4.16(a), 4.19. See also Blackburn v. Brown, 4 Vet. App. 395, 398 (1993); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In conclusion, the Board finds that the evidence supports the grant of entitlement to TDIU. 38 C.F.R. § 4.3. The medical and lay evidence of record establishes that the combination of the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. 38 C.F.R. § 4.16. Accordingly, the TDIU appeal is granted. In making this determination, this TDIU award is based on the combined effects of the Veteran's service-connected disabilities, as opposed to any single disability alone. That is to say, the Veteran does not meet the criteria for a TDIU based on any single disability alone. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The significance of this finding is that a TDIU rating based on multiple service-connected disabilities would not satisfy the criteria for one total disability in considering entitlement to SMC housebound benefits under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App. 290-91. Moreover, the Veteran has repeatedly asserted that it is the combination of his service-connected disabilities that prevent gainful employment, as opposed to any one single disability. See e.g., January 2015 VA Form 9; October 2013 TDIU application (VA Form 21-8940); October 2013 Veteran statement. ORDER Entitlement to a TDIU is granted. REMAND However, before addressing the merits of the skin disorder claim, the Board finds that additional development of the evidence is required. The Veteran is seeking service connection for his skin disorders on the basis of alleged exposure to both herbicides (Agent Orange) and radiation (ionizing). In the earlier July 2015 Board remand, the Board concluded that the Veteran set foot on the Vietnam landmass when he went ashore while stationed aboard the USS Newell. Thus, the Board acknowledged that the Veteran had "service in Vietnam," during the late 1960s, such that exposure to herbicides to include Agent Orange was presumed. 38 C.F.R. §§ 3.307(a)(6), 3.313(a). The Board has already secured a November 2015 VA medical opinion addressing whether the Veteran's various skin disorders - including his basal cell skin cancer, actinic keratosis, cysts, folliculitis and eczema, are due to his presumed Agent Orange exposure in Vietnam during service. But the Veteran also contends that he was exposed to ionizing radiation in 1967 and 1968 during active service. Specifically, he contends his exposure to ionizing radiation occurred during onsite participation in the underground detonations of nuclear devices at Sandia Base in New Mexico and at Nevada Test Sites. He says he worked as a petty yeoman / clerk 1800 feet below the surface, doing administrative clerk and carrier work after the detonation of a nuclear device. He says he was exposed to areas that were near the detonation points, and had to inspect and make notes a few feet from the craters which remained, after the below- the-ground detonations. These craters contained radioactive rubble. He describes instances in which he had to wear a badge to determine the amount of radiation he was exposed to after walking around a crater at ground zero from a nuclear detonation. In one instance, his badge changed color demonstrating positive exposure to ionizing radiation from the nuclear detonation, such that he was made to take a shower right after for decontamination purposes. A May 2013 Wikipedia article submitted by the Veteran confirms that Operations Latchkey, Crosstie, and Bowline were conducted at the Nevada Test Site from 1966 to 1969. These tests consisted of 100s of nuclear test explosions performed underground creating large craters. Service personnel records (SPRs) verify that the Veteran served at these locations from July 1967 to May 1968. For example, a November 1967 SPR performance evaluation noted the Veteran was yeoman of a nuclear branch, directorate of test operations, Test Command, Defense Atomic Support Agency (DASA), at Sandia Base, New Mexico. SPRs also make reference to TDY duty at the Nevada Test Site in Mercury, Nevada. SPRs indicate the Veteran prepared correspondence and messages, and performed routine office tasks. He also had a top secret clearance for this period of service. In any event, as a result of his alleged ionizing radiation exposure, he says he began to develop skin lesions including skin cancer in the 1980s and 1990s. In the Board's earlier July 2015 remand, the Board instructed the AOJ to provide the Veteran compliant VCAA notice based on exposure to ionizing radiation under 38 C.F.R. § 3.311. In addition, the Board instructed the AOJ to follow the correct developmental procedures for the Veteran's alleged ionizing radiation exposure, as required under 38 C.F.R. § 3.311. This included obtaining a dose assessment. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. However, only "substantial" compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In the present case, the AOJ did not substantially comply with the Board's remand instructions from the earlier July 2015 Board remand - with regard to sending the VCAA notice letter for radiation and performing the proper ionizing radiation development, as required under 38 C.F.R. § 3.311. First, with regard to the VCAA, the notice letters sent by the AOJ to the Veteran during the course of the appeal are insufficient. Consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the Veteran about the information and evidence not of record that is necessary to substantiate his service connection claim for a skin disorder based on radiation exposure; (2) inform him about the information and evidence the VA would seek to provide; (3) inform him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, no VCAA letter addressed the unique evidentiary requirements for radiation claims, or included the appropriate questionnaire for radiation claims. See e.g., 38 C.F.R. §§ 3.309, 3.311 (2017). A remand is required for the AOJ to send a new VCAA notice letter to correct this deficiency. Second, the AOJ must undertake further development and procedural actions with regard to the service connection claim for a skin disorder as the result of ionizing radiation, as outlined in 38 C.F.R. § 3.311 and in the M21-1, VBA Live Manual, Part IV, Subpart ii, Chapter 1, Section C. At the outset, skin cancer and the Veteran's other skin disorders are not one of the diseases set forth under 38 C.F.R. § 3.309(d). Therefore, the Board finds that the presumptive provisions of 38 C.F.R. § 3.309(d) are not for application with respect to the Veteran's skin disorders. As such, no further development under that regulation is warranted. That notwithstanding, as mentioned above, further development and procedural actions are still warranted as outlined in 38 C.F.R. § 3.311. The governing regulation states that, in all claims in which it is established that a "radiogenic disease" first became manifest after service within a certain time frame for that disease, and it is contended that the disease resulted from ionizing radiation exposure, a dose assessment will be made. 38 C.F.R. § 3.311(a)(2). The Veteran's documented skin cancer is considered a "radiogenic disease," as listed under 38 C.F.R. § 3.311(b)(2)(vii) and manifested here over 5 years after the alleged exposure to ionizing radiation during service pursuant to 38 C.F.R. 3.311(b)(5)(iv). Therefore, since the Veteran contends his skin cancer resulted from ionizing radiation exposure, to properly develop this claim under 38 C.F.R. § 3.311, an assessment must be made as to whether the Veteran was exposed to any ionizing radiation during service and to the size and nature of any radiation dose. This assessment can be requested from the Under Secretary for Health and the Department of Defense. See 38 C.F.R. § 3.311(a)(2)(i) and (iii). Then, depending on whether or not the dose assessment reveals exposure to ionizing radiation, the AOJ may refer the claim to the Under Secretary for Benefits for further consideration, including a medical opinion as to etiology, but only if appropriate. See 38 C.F.R. § 3.311(b)(1)(i)-(iii). In the present case, a May 2013 response from the National Personnel Records Center (NPRC) indicated that all available radiation risk records were mailed to the AOJ. The NPRC added that a DD Form 1141 or records of exposure to radiation are not a matter of record for this Veteran. As to a dose assessment, the AOJ also secured an October 2015 response from the Department of the Navy Naval Dosimetry Center. The Naval Dosimetry Center stated that a review of their exposure registry revealed no reports of occupational exposure to ionizing radiation pertaining to this Veteran. However, it was noted that the DD Form 1141 - official exposure record should be compared to the Naval Dosimetry Center report. The Naval Dosimetry Center asked for VA to forward any supporting documentation. Also, the Naval Dosimetry Center advised that the Defense Threat Reduction Agency (DTRA) may have further information regarding incurred occupational exposure to ionizing radiation. There is no indication in the claims file that the AOJ attempted to follow up by contacting DTRA. (In any event, this error is inconsequential, as DTRA only provides confirmation of participation and radiation doses for veterans involved in U.S. atmospheric nuclear testing from 1945 to 1960 and the occupation forces of Hiroshima / Nagasaki. Neither situation applies to the Veteran in this case). See M21-1, Part IV, Subpart ii, Chapter 1, Section C, Topic 4, Block a. However, the October 2015 response from Naval Dosimetry Center is insufficient and failed to address the Veteran's credible description of instances in which he had to wear a badge to determine the amount of radiation he was exposed to after walking around a crater from a nuclear detonation at the Nevada Test Sites in 1967 and 1968. In one instance, he states his badge changed color demonstrating positive exposure to ionizing radiation from the nuclear detonation, such that he was made to take a shower right after for decontamination purposes. The Naval Dosimetry Center failed to address this description of the Veteran's duties as supported by his SPRs, and answer whether the Veteran was exposed to radiation during service and the nature (ionizing or non-ionizing) and the size of such radiation dose. Therefore, a remand is required for the AOJ to contact the Naval Dosimetry Center and the Under Secretary for Health for a proper dose assessment. In addition, in cases outside the scope of DTRA, the VBA Live Manual instructs that a letter requesting dosimetry information should also be sent to the appropriate service department (Coast Guard) point of contact listed in M21-1, Part IV, Subpart ii, 1.C.3.f., as well as the Undersecretary of Health. See M21-1, Part IV, Subpart ii, Chapter 1, Section C, Topic 4, Block b. Third, as noted above, in May 2013 the NPRC indicated that a DD Form 1141 or records of exposure to radiation are not a matter of record for this Veteran. However, the M21-1 Live Manual instructs that if evidence of occupational radiation exposure, such as a DD Form 1141 or NAVMED6470/10 or NAVMED6470/11 or NRC Form 5 cannot be found in PIES, a written request for the record should be sent to the appropriate service department (Coast Guard). A table in the M21-1 lists a specific person and address to contact for Coast Guard veterans. See M21-1, Part IV, Subpart ii, Chapter 1, Section C, Topic 3, Block f. The AOJ must therefore follow this protocol and contact this Coast Guard representative at the given address for evidence of occupational radiation exposure. Fourth, depending on whether or not the any of the dose assessments reveal exposure to ionizing radiation, refer the skin disorder claim to the Under Secretary for Benefits for further consideration, including a medical opinion as to etiology, but only if exposure to ionizing radiation is confirmed. See 38 C.F.R. § 3.311(b)(1)(i)-(iii) and (c). Accordingly, the issue of service connection for a skin disorder is REMANDED for the following action: 1. The AOJ must send the Veteran a VCAA letter notifying him and his attorney of the evidence necessary to substantiate the claim for service connection for a skin disorder on the basis of alleged exposure to RADIATION during service. See 38 C.F.R. §§ 3.309, 3.311 (2017). Specifically, this letter must address the unique evidentiary requirements for radiation claims and include a copy of the appropriate questionnaire for radiation claims. 2. The AOJ should follow the instructions detailed in VBA's M21-1 (Live Manual) for sending a written request to the appropriate service department (Coast Guard) for evidence of occupational radiation exposure for the Veteran - such as a DD Form 1141 or NAVMED6470/10 or NAVMED6470/11 or NRC Form 5. A table in the M21-1 lists a specific person and address to contact for Coast Guard veterans. See M21-1, Part IV, Subpart ii, Chapter 1, Section C, Topic 3, Block f. (On this issue, in May 2013 the NPRC already indicated that a DD Form 1141 or records of exposure to radiation are not a matter of record for this Veteran. However, VBA's M21-1 Live Manual instructs that if evidence of occupational radiation exposure, such as a DD Form 1141 cannot be found in PIES, a written request for the record should be sent to the appropriate service department, such as the Coast Guard. A table in the M21-1 lists a specific person and address to contact for Coast Guard veterans. See M21-1, Part IV, Subpart ii, Chapter 1, Section C, Topic 3, Block f). 3. After steps 1-2 are completed, the AOJ must once again attempt to obtain a dose assessment from all three potential contacts - (1) the Naval Dosimetry Center, (2) the Under Secretary for Health; and (3) the appropriate service department (Coast Guard) point of contact listed under M21-1, Part IV, Subpart ii, 1.C.3.f. (As instructed by M21-1, Part IV, Subpart ii, Chapter 1, Section C, Topic 4, Block b). This dose assessment should indicate whether the Veteran was exposed to radiation during service and the nature (ionizing or non-ionizing) and size of such radiation dose. In obtaining this dose assessment, the AOJ must provide all three potential contacts listed above with copies of the Veteran's STRs and SPRs from his Coast Guard service from 1962 to 1969. In addition, the letter to all three potential contacts must include the following information contained in (A), (B), and (C) below: (A) The Veteran contends that he was exposed to ionizing radiation in 1967 and 1968 during active service. Specifically, he contends his exposure to ionizing radiation occurred during onsite participation in the underground detonations of nuclear devices at Sandia Base in New Mexico and at Nevada Test Sites. He says he worked as a petty yeoman / clerk 1800 feet below the surface, doing administrative clerk and carrier work after the detonation of a nuclear device. He says he was exposed to areas that were near the detonation points, and had to inspect and make notes a few feet from the craters which remained, after the below-the-ground detonations. These craters contained radioactive rubble. He describes instances in which he had to wear a badge to determine the amount of radiation he was exposed to after walking around a crater at ground zero from a nuclear detonation. In one instance, his badge changed color demonstrating positive exposure to ionizing radiation from the nuclear detonation, such that he was made to take a shower right afterwards for decontamination purposes. A May 2013 Wikipedia article submitted by the Veteran confirms that Operations Latchkey, Crosstie, and Bowline were conducted at the Nevada Test Site from 1966 to 1969. These tests consisted of 100s of nuclear test explosions performed underground - creating large craters as the Veteran described. (B) Service personnel records (SPRs) dated in April 1962 show that Veteran served with the Defense Atomic Support Agency (DASA); --- An SPR DASA letter dated in May 1962 has a discussion of nuclear weapons effects, research, and tests. --- Service treatment records (STRs) dated in July 1967 note that the Veteran was fit to serve under DOD Dir. 5210.42 pertaining to personnel assigned to nuclear weapons systems - signed by the Chief of Psychiatric Service. --- STRs dated July 24, 1967, March 6, 1968, and April 12, 1968, clearly show the Veteran suffered from nervous tension (nervousness), inability to sleep (insomnia), and headaches, as well as "chronic nervous stomach," during his TDY assignment to the Nevada Test Site. ---SPRs make reference to TDY time spent at the Nevada Test Site in Mercury, Nevada from approximately July 1967 to May 1968. --- A November 1967 SPR performance evaluation noted the Veteran was yeoman of a nuclear branch, directorate of test operations, Test Command, Defense Atomic Support Agency (DASA) at Sandia Base, New Mexico. The Veteran prepared correspondence and messages, and performed routine office tasks. He also had a top secret clearance for this period of service. --- An April 1968 STR clinical record notes that the Veteran was at a recent temporary duty assignment to the Nevada Test Site. He has experienced anxiety issues for performance in unusual or tense situations. --- SPRs also include a May 1968 evaluation report which notes the Veteran had an early termination of a temporary duty assignment in the field at the Naval Test Site in Mercury, Nevada. (C) Post-service, as a result of his alleged ionizing radiation exposure, the Veteran says he began to develop skin lesions including skin cancer in the 1980s and 1990s. --- A September 1992 Coast Guard Reserve examination revealed a small quarter size cystic nodule on the upper scapular region of the back - not considered disabling. --- An August 2006 private pathology report from Midlands Hospital indicated the Veteran's neck had fibrolipoma, the upper back had two epidural inclusion cysts, the left groin had lipoma, and the nose had intradermal nevus and actinic keratosis. The Veteran underwent excision of these lesions in August 2006. --- A September 2010 private histopathologic report showed basal cell carcinoma on the back. --- A December 2010 private histopathologic report showed tricholfolliculoma on right nose; intradermal nevus on the abdomen; and compound nevus on the upper back and on the left back medial and right back. 4. After steps 1-3 are completed, depending on whether or not the dose assessment reveals exposure to ionizing radiation, refer the skin disorder claim to the Under Secretary for Benefits for further consideration, including a medical opinion as to etiology, but only if exposure to ionizing radiation is confirmed. See 38 C.F.R. § 3.311(b)(1)(i)-(iii). 5. After steps 1-4 are completed, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After steps 1-5 are completed, the AOJ should consider all of the evidence of record and readjudicate issue of service connection for a skin disorder, to include as due to herbicide (Agent Orange) exposure and as due to radiation exposure. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his attorney an opportunity to respond. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs