Citation Nr: 18151195 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-48 693 DATE: November 16, 2018 REMANDED Entitlement to service connection for neck and scalp cysts, to include as due to radiation exposure, is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from December 1976 to March 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran initiated an appeal regarding the issue of entitlement to service connection for migraine headaches but did not perfect the appeal; rather, the Veteran limited his appeal to the issue noted above in his substantive appeal. Accordingly, the issue of entitlement to service connection for migraine headaches is not in appellate status. Entitlement to service connection for neck and scalp cysts Remand is required to secure a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination to determine the etiology of his cysts. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Service connection for a disability based upon radiation exposure may be awarded on three different legal bases. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). Second, radiogenic diseases may also be service connected. 38 C.F.R. § 3.311. Third, service connection may be granted when it is established that a disease diagnosed after discharge from service was otherwise incurred during active service, including as a result of exposure to radiation. 38 C.F.R. § 3.303 (d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under the first basis, cysts are not a presumptive disease. See 38 C.F.R. § 3.309(d)(2). Under the second basis, service connection may be granted where there is exposure to ionizing radiation and the subsequent development of a radiogenic disease within a specified time period. 38 C.F.R. § 3.311(b). Cysts are not listed as a radiogenic disease and the Veteran has not submitted competent scientific or medical evidence that cysts are a radiogenic disease. 38 C.F.R. § 3.311(b)(2), (4). Under the third basis, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Here, there is current treatment for cysts, in-service radiation exposure, and a suggestion that the two may be related. The Veteran reported in-service cysts and recurrent cysts since that time. November 2015 and February 2016 VA treatment records showed cysts on the Veteran’s head and scalp. A DD Form 1141, Record of Occupation Exposure to Ionizing Radiation, noted occupational exposure to ionizing radiation from February 1979 until July 1979 at Enewetak Atoll. In a November 2017 statement, the Veteran alleged he got the first cysts on the back of his neck while serving at the Enewetak Atoll. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his scalp and neck cysts, to include as due to radiation exposure. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the cysts had onset in, or are otherwise related to, active military service, to include in-service radiation exposure. The examiner must specifically address the Veteran’s assertions of in-service cysts. The examiner must also specifically address the occupational radiation exposure record contained in the Veteran’s STRs. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel