Citation Nr: 18154843 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-23 010 DATE: November 30, 2018 REMANDED Entitlement to service connection for colitis as due to ionizing radiation exposure is remanded. REFERRED The issues of entitlement to service connection for thyroid, stomach, small intestine, and urinary tract conditions were raised in a June 2018 VA Form 9 and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1970 to September 1974. The matter is on appeal from a rating decision dated June 2013. In a May 2018 correspondence, the RO noted that the June 2015 VA Form 9 indicated the Veteran did not desire a Board hearing. The RO asked the Veteran to clarify whether he still desired a Decision Review Officer (DRO) hearing. The letter states that if no response was received within 30 days, no action would be taken. The Veteran did not respond. The Board finds that the DRO hearing request was withdrawn. Thus, remand for a DRO hearing is not required. See also Bowen v. Shinseki, 25 Vet. App. 250, 254 (2012). 1. Entitlement to service connection for colitis as due to ionizing radiation exposure is remanded. The Veteran contends that he suffers from colitis as a result of being exposed to radiation from his active duty naval service. See March 2012 Veteran’s Statement. Service connection may be established if a radiation-exposed veteran develops a “radiogenic disease” (one that may be induced by ionizing radiation, either listed at 38 C.F.R. § 3.311 (b) or established by competent scientific or medical evidence to be a radiogenic disease), and if the VA Under Secretary for Benefits determines that a relationship does in fact exist between the disease and the veteran’s exposure in service. Although colitis is not a radiogenic disease as set forth in 38 C.F.R. § 3.311, the Veteran may pursue service connection for this condition on a direct basis. Service connection may be established by competent evidence establishing the existence of a medical nexus between the claimed condition and exposure to ionizing radiation during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). First, the Board finds that further development is required regarding in-service exposure to radiation. The evidence of record does not establish, and the Veteran does not contend, that he participated in a “radiation-risk activity.” However, STRs confirm that he was exposed to ionizing radiation. Thus, a dose estimate must be obtained from the VA Under Secretary for Health. Second, the Board finds the September 2012 VA Intestinal Conditions Disability Benefits Questionnaire opinion inadequate and a remand is necessary for a new medical opinion. See 38 U.S.C. § 5103A (d); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner opined, in relevant part, that the Veteran’s chronic colitis is less likely than not caused by or a result of his active duty service, or more specifically, any in-service exposure to radiation. The examiner’s stated rationale for the negative nexus opinion is that a 12/8/1971 service record shows that the Veteran’s radiation exposure was 0 and that the amount of radiation the Veteran was exposed to at any other time is “unknown.” The Board finds the negative nexus opinion inadequate because it was made based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). A full review of the Veteran’s service records shows documentation that the Veteran was in fact exposed to radiation while in service in November 1971 at a level of .028. See Service Records. Therefore, remand for another opinion is required. Moreover, the Veteran has asserted in his Form-9 that the September 2012 VA examiner was unqualified to offer the opinion because he is not an expert in nuclear medicine or radiology. See Form-9. The VA examiner himself also wrote in the opinion that if more clarification of his negative nexus opinion is necessary, then he would recommend obtaining an opinion from a gastroenterology specialist as he is an internal medicine physician. See September 2012 VA Intestinal Conditions Disability Benefits Questionnaire opinion. The mere fact that the examiner is not a nuclear medicine or radiology or gastroenterology specialist does not render him unqualified or render the examination inadequate. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Nevertheless, the Board notes that an examiner may have an obligation to conduct further research in medical literature depending on the evidence in the record at the time of examination. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, upon remand, the new VA nexus opinion to be obtained must be from an appropriate examiner who is able to provide a nexus opinion that is fully supported with sufficient detail for the Board to make an informed evaluation of whether direct service connection is warranted. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matter is REMANDED for the following action: 1. Forward the Veteran’s claims file to the VA Under Secretary for Health for preparation of a dose estimate. 2. If the VA Under Secretary for Health, in preparing a dose estimate, determines that the Veteran was exposed to ionizing radiation, forward the Veteran’s claims file to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311 (c). 3. Following the above development, forward the record and a copy of this Remand to a VA gastroenterologist for preparation of an opinion as to the nature and likely etiology of the Veteran’s colitis. If the examiner deems that a new examination is necessary, then schedule the Veteran for a new examination. The examiner is asked to offer an opinion as to whether it is at least as likely as not that the Veteran’s colitis had its onset in service or is otherwise related to the Veteran’s military service. Specifically, the examiner must comment on whether the colitis may be etiologically related to the Veteran’s confirmed in-service radiation exposure. The examiner must consider the September 1974 STR noting a radiation dose of .028 REM and any dose estimate obtained from the VA Under Secretary for Health. For all opinions, the RO should ensure that a rationale is provided, to include specific discussion of the medical principles involved and the relevant facts. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) Any opinion expressed must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel