Citation Nr: 18139569 Decision Date: 10/01/18 Archive Date: 09/28/18 DOCKET NO. 12-33 309 DATE: October 1, 2018 REMANDED The claim of entitlement to service connection for thyroid cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to October 1971. This appeal to the Board of Veterans Appeals (Board) arose from a February 2011 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for thyroid cancer. The Veteran disagreed with RO’s decision and this appeal ensued. In November 2016, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. In May 2017, the Board remanded the claim on appeal to the agency of original jurisdiction (AOJ) for further evidentiary development. Unfortunately, the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271. In remanding the Veteran’s claim in May 2017, the Board noted his assertion of having been exposed to ionizing radiation while serving aboard the USS Charles P. Cecil DD-835. The Board specifically directed that an additional search be made specifically for the Veteran’s DD Form 1141. While it appears that the AOJ made a request for evidence pertaining to radiation risk activities in September 2017, there is no indication that a response to this request was received. Thus, there is no clear indication as to whether the search for the Veteran’s DD Form 1141 was specifically conducted and, therefore, remand is required to again request evidence of the Veteran’s exposure to ionizing radiation, including his DD Form 1141. Additionally, following the Board’s remand of the claim, the Veteran submitted an additional statement in July 2018 further describing possible exposure to radiation aboard his ship the USS Charles P. Cecil, which he contended was a training ship for nuclear weapons. Additionally, during an October 2017 VA examination, the VA examiner remarked that with respect to the Veteran’s occupational history, his assigned ship was a nuclear weapons carrier, where there was some exposure to radiation, though the basis for the examiner’s notation is not clear. Given the evidence of record alleging the Veteran’s exposure to ionizing radiation as result of his military duties aboard his assigned ship, and his diagnosis of a radiogenic disease, the Board finds that additional development should be conducted in order to attempt to verify the Veteran’s radiation exposure in accordance with VA procedures and regulations. In this regard, VA’s Adjudication Procedures Manual, M21-1, provides instruction for properly developing a claim based on exposure to radiation. Specifically, the M21-1 notes that “[e]ach branch of service maintains a record of its service members’ occupational exposure to radiation” …, and that “[i]f evidence of occupational radiation exposure, such as a DD Form 1141, NAVMED 6470/10, NAVMED 6470/11, or NRC Form 5, cannot be found in the Veteran’s records or obtained through [the Personnel Information Exchange System (PIES)],” a written request should be prepared for the record from the appropriate service branch. See M21-1, Part IV, Subpt. ii.1.C.3.f. Although it is unclear at this point whether evidence of the Veteran’s exposure to ionization radiation may be available through a PIES request, if the AOJ determines that such Form is not available for the Veteran, the appropriate request should be made through Naval Dosimetry Center. See id. Further, 38 C.F.R. § 3.311(a)(1) provides that where a radiogenic disease, such as thyroid cancer, is contended to have been incurred as “a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses.” In this regard, 38 C.F.R. § 3.311(a)(2)(iii) directs that all records which may contain information pertaining to a veteran’s exposure “will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies.” Here, in spite of the Veteran’s contentions and evidence of his in-service duties and assignments, there is no indication that any records were forwarded the Under Secretary for Health for the preparation of a dose estimate, as directed by the applicable regulation. Such action should be taken on remand, once the development described above has been completed. Also, while this matter is on remand, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through June 2017. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since June 2017. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal (particularly, regarding private (non-VA) treatment and/or employment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. This matter is hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since June 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to one or more claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. Obtain and associate with the electronic claims file any available records concerning the Veteran’s exposure to radiation. Specifically request a copy of his DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, if existing, and/or any other record that contains radiation exposure information. If any requested records are deemed to be unavailable through a PIES request(s), such must be specifically noted in the electronic claims file. 5. If evidence of the Veteran’s exposure to radiation cannot be obtained through a PIES request, send a written request for such evidence to the Naval Dosimetry Center, as described in the M21-1. 6. Thereafter, regardless of whether the Veteran’s records document exposure to ionizing radiation, forward all of the Veteran’s available records, including his personnel file and his service treatment records, which document his duties as a boatswain’s mate aboard the USS Charles P. Cecil, to the Under Secretary for Health, who will be responsible for preparation of a dose estimate of the Veteran’s exposure to ionizing radiation during his active service, to the extent feasible, based on available methodologies, pursuant to 38 C.F.R. § 3.311(a)(2)(iii). 7. If it is determined that the Veteran was exposed to radiation during service, forward the case to the VA Under Secretary for Benefits to obtain an opinion as to whether it is at least as likely as not that any exposure to ionizing radiation during the Veteran’s active service, caused or contributed to his development of thyroid cancer, taking into consideration the factors listed under 38 C.F.R. § 3.311(e). 8. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. (Continued on the next page) 9. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel