Citation Nr: 18145284 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-36 844 DATE: October 30, 2018 ISSUES 1. Entitlement to service connection for B-cell non-Hodgkin lymphoma. 2. Entitlement to service connection for papillary thyroid carcinoma. REMANDED Entitlement to service connection for B-cell non-Hodgkin lymphoma is remanded. Entitlement to service connection for papillary thyroid carcinoma is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1995 to June 2002, from November 2003 to April 2005, from March 2007 to July 2008, and from October 2009 to May 2011, including service in Southwest Asia. The Veteran had additional service in the Army National Guard. His decorations are numerous and include the Combat Action Badge. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction was transferred to the RO in Muskogee, Oklahoma. The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. Initially, the Board notes that it does not appear that the Veteran’s complete service personnel records are associated with the electronic claims file. As such, his complete service personnel record should be sought on remand. The Veteran contends that service connection is warranted for the disabilities on appeal as they are related to his duties in service as a tank crew commander to include exposure to depleted uranium used to make the tanks, environmental exposures to smoke and fumes from burn pits in Iraq and Afghanistan, and exposure to sick animals and contaminated crops/soil and pesticides while working on special assignment in Afghanistan. The Veteran also stated in July 2014 correspondence that he was exposed to fragments and airborne particles of depleted uranium during his 2004 to 2005 Iraq tour when his vehicles were hit by small arms fire and multiple improvised explosive devices (IEDs). The Veteran again noted his exposure to animals and pesticides that were used by Afghanis and that he was in close daily proximity to burn pits and human waste burning barrels. The Veteran’s DD Form 214 shows that he was an armor crewman. Accordingly, the evidence of record shows that the Veteran had service in a position which warrants VA consideration of exposure to ionizing radiation. Service treatment records show that in March 2010, while stationed in Afghanistan, the Veteran complained of being exposed to mud mixed with animal feces and urine that was splashing on his uniform, hands, and face while working a Veterinary Civil Action Program (VETCAP) seven days prior. The Board notes that VETCAPs are short-term clinics conducted by military veterinarians to treat the local livestock. See e.g., https://www.ncbi.nlm.nih.gov/pubmed/20084755. Private treatment records show diagnoses of B-cell lymphoma and papillary thyroid carcinoma from April 2013. In February 2014 correspondence from the Army Dosimetry Center, it was stated that they were unable to find any records for the Veteran regarding exposure to ionizing radiation. The Board notes that non-Hodgkin lymphoma and thyroid cancer are listed under 38 C.F.R. § 3.311 (b)(2) (2017) as radiogenic diseases (i.e., any other cancer). In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and it is contended the disease is 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. 38 C.F.R. § 3.311 (a)(1). In addition, any exposure to ionizing radiation higher than zero triggers a referral to the Under Secretary. Wandel v. West, 11 Vet. App. 200, 205 (1998); Hilkert v. West, 12 Vet. App. 145 (1999). Specifically, if a veteran has one of the listed radiogenic diseases, the agency of original jurisdiction (AOJ) must obtain dose information and, if there is no claim based on participation in atmospheric nuclear testing, forward such information to the Under Secretary for Health for a radiation dose estimate. See 38 C.F.R. §3.311 (a). If the dose estimate is more than zero, the AOJ must refer the claims file to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the veteran’s disease resulted from radiation exposure during service. See 38 C.F.R. § 3.311 (c). The Board finds that such development is warranted in this case. A VA opinion was obtained in February 2014 in which the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that B-cell non-Hodgkin lymphoma and papillary thyroid carcinoma were distinct diseases with a clear and specific diagnosis established by biopsy; these conditions had not been associated with the illnesses or exposures described in veterans returning from the Gulf War in medical research published in peer-reviewed medical journals. The examiner therefore opined that it was less likely than not that the conditions described in the report were related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The Board finds that clarification is required from the February 2014 VA examiner as this opinion was conclusory, referencing veterans returning from the Gulf War in general, and did not address this Veteran’s specific complaints and in-service exposures as outlined above. This opinion was also provided without the benefit of a dose estimate by the Under Secretary for Health or an advisory opinion from the Under Secretary of Benefits. Therefore, following the receipt of such responses, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Request copies from all appropriate sources of the Veteran’s complete service personnel records. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 2. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § 3.159 (e). 3. Forward all records containing information pertinent to the Veteran’s in-service radiation exposure, to specifically include his complete service treatment and personnel records, and any other records which may contain information pertaining to the Veteran’s radiation dose in service, to the Under Secretary for Health for preparation of a dose estimate, to the extent feasible, based on available methodologies. If the dose estimate is above zero, the claims file should be referred to the Under Secretary for Benefits for an advisory opinion regarding whether the Veteran’s B-cell non-Hodgkin lymphoma and papillary thyroid carcinoma are related to his exposure to ionizing radiation consistent with the requirements of 38 C.F.R. § 3.311. 4. After the completion of the above development, and the receipt of any additional records, return the claims file, to include a copy of this remand, to the February 2014 VA examiner for an addendum opinion. If the examiner who drafted the February 2014 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. Following a review of the claims file, the reviewing examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran’s B-cell non-Hodgkin lymphoma and papillary thyroid carcinoma are related to his active duty service. The examiner must address any in-service exposure to ionizing radiation (if found as noted above) through the Veteran’s duties as a tank crew commander to include exposure to depleted uranium used to make the tanks and due to IEDs, environmental exposures to smoke and fumes from burn pits and human waste burning barrels in Iraq and Afghanistan, and exposure to sick animals and contaminated crops/soil and pesticides while working on special assignment with VETCAPs in Afghanistan. This opinion should consider the dose estimate provided by the Under Secretary for Health and an advisory opinion provided by the Under Secretary of Benefits. A full and complete rationale for all opinions expressed must be provided. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Jones v. Shinseki, 23 Vet. App. at 389. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel