Citation Nr: 18148381 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-37 670 DATE: November 7, 2018 REMANDED Entitlement to service connection for cancer of the salivary glands, to include as due to ionizing radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1967 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision. The Board notes that the Veteran’s claim for service connection for cancer of the salivary glands was previously considered and denied by the Agency of Original Jurisdiction (AOJ) in a July 2010 rating decision. However, the RO received additional relevant service personnel records after the July 2010 rating decision. These records include a March 1969 evaluation that noted the Veteran was assigned to nuclear weapons duties. The Board also notes that the March 1969 record was in existence and not previously associated with the claims file at the time of the July 2010 rating decision. Therefore, 38 C.F.R. § 3.156(c) applies, the July 2010 rating decision is not final, and the claim will be reconsidered on the merits. See 38 C.F.R. § 3.156(c) (new and material evidence-service department records). The Veteran has been diagnosed with salivary gland cancer, which is a radiogenic disease as defined under 38 C.F.R. § 3.311(b)(2). The evidence of record also indicates that the Veteran’s salivary gland cancer manifested five years or more after exposure. Moreover, the Veteran has contended that the disease is the result of exposure to ionizing radiation during service. The record reflects that the AOJ requested the Veteran’s service personnel records and DD Form 1141 Record of Occupational Exposure to Ionizing Radiation in an attempt to confirm his exposure to radiation. In addition, in July 2015, the United States Army Dosimetry Center researched the files for records of exposure to ionizing radiation, but they were unable to locate any records for the Veteran. As such, no dose estimate was prepared. However, 38 C.F.R. § 3.311 provides that all available records concerning the Veteran’s exposure to radiation 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. 38 C.F.R. § 3.311(a)(2)(iii). Therefore, on remand, the AOJ should ensure that all proper development has been conducted in accordance with 38 C.F.R. § 3.311. The Board also notes that a VA medical opinion has not been obtained in this case. The Veteran’s service personnel record note that he performed nuclear weapons duties. His post-service medical records also show diagnoses of mucoepidermoid carcinoma and left parotid pleomorphic adenoma. In addition, in a March 2007 private otolaryngology evaluation, Dr. C.S. (initials used to protect privacy) stated that he was concerned about the possibility of a radiation-related tumor given the Veteran’s medical history. It was further noted that the Veteran reported having a history of a left parotid mass for the past 30 years. Therefore, a remand is necessary to obtain a VA medical opinion. In addition, it does not appear that the Veteran has been provided complete notice for his claim. In this regard, the Board notes that the July 2016 statement of the case (SOC) did not set forth the provisions of 38 C.F.R. § 3.311. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his salivary gland cancer that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should conduct all necessary development to request any available records concerning the Veteran’s exposure to radiation and develop the claim in accordance with 38 C.F.R. § 3.311. The AOJ should document all efforts undertaken and the responses received. 3. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to determine the nature and etiology of any salivary gland cancer. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has salivary gland cancer that manifested in service or within one year thereafter or that is otherwise causally or etiologically related to his military service, to include any radiation exposure (service records indicate that he was assigned to nuclear weapons duties). In rendering his or her opinion, the examiner should consider the March 2007 private otolaryngology evaluation that noted the Veteran reported having a left parotid mass for the past 30 years and that he underwent radiation treatment for adenoid problems. The examiner should also consider the March 2007 private medical statement from Dr. C.S., in which he reported that he was concerned about the possibility of a radiation-related tumor given the Veteran’s previous history. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth the provisions of 38 C.F.R. § 3.311. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel