Citation Nr: 18156345 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-62 446 DATE: December 7, 2018 REMANDED Entitlement to service connection for lung cancer, to include as due to exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1961 to August 1964. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As a procedural matter, the Veteran originally submitted a claim for service connection for lung cancer, tinnitus, and anemia, which were denied in the July 2016 rating decision. The Veteran filed a timely notice of disagreement only as to the issues of service connection for lung cancer and tinnitus. Further, during the pendency of the appeal, the Veteran was granted service connection for tinnitus in a November 2016 rating decision. As this was a full grant of the benefit sought on appeal, tinnitus is not before the Board. The Veteran waived a hearing before the Board in his December 2016 substantive appeal, via a VA Form 9. Entitlement to service connection for malignant neoplasms in the lungs is remanded. First, in an October 2005 private treatment record, the Veteran’s oncologist reported the Veteran had been awarded disability from the Social Security Administration (SSA). No medical records or administrative decisions from SSA are associated with the claims file. A remand is warranted to request these records and associate them with the claim file. Next, as an overview, service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by one of three possible methods. See 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, a “radiogenic disease” may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) 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. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under 38 C.F.R. § 3.311, if a “radiogenic disease” is not eligible for service connection on a presumptive basis and it is contended that the disease is a result of exposure to ionizing radiation in service, the Veteran may be entitled to special development procedures for determining whether the particular disease may be related to ionizing radiation. Those procedures include obtaining a dose assessment of exposure to radiation in service, and referral to the Under Secretary for Benefits for an advisory opinion on whether the Veteran’s radiogenic disease is related to his in-service radiation exposure. See 38 C.F.R. § 3.311. In this case, the Veteran was diagnosed with a carcinoid tumor in 2005 with lesions in his stomach and lungs. Carcinoid syndrome and metastases to both lungs were suspected. Specifically, during a May 2005 CT scan, three lung nodules were found in the Veteran’s lungs. The Veteran’s military occupational specialty was a nuclear weapons maintenance specialist. See DD Form 214. The Veteran contends that his lung nodules were lung cancer which was caused by exposure to radiation during service. There are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed veteran. A “radiation-exposed veteran” is one who participated in a radiation-risk activity. “Radiation-risk activity” is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d)(3)(i), (ii). The term “onsite participation” means during the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. 38 C.F.R. § 3.309(d)(3)(iv)(A). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Nothing in the record establishes, and the Veteran does not contend, that he meets the definition of a “radiation-exposed veteran.” However, if a radiogenic disease (i) first became manifested after service, (ii) cannot be granted under the presumptive provisions of 38 C.F.R. § 3.307 or 38 C.F.R. § 3.309, and (iii) it is contended the disease is the result of exposure to ionizing radiation in service, a dose assessment is necessary prior to adjudication of the claim. 38 C.F.R. § 3.11(a). Here, the claims file suggests that the Veteran had nodules in his lungs, which may have been considered metastatic lung cancer due to the gastric carcinoid tumor. However, whether the Veteran had a definitive diagnosis of lung cancer is unclear. Thus, a remand is warranted to afford the Veteran a VA examination to determine if the lung nodules were, in fact, lung cancer. If so, then further development under 38 C.F.R. § 3.311 must be completed and the claim readjudicated. The matter is REMANDED for the following action: 1. Invite the Veteran to submit a claim for service-connection for a gastric carcinoid tumor via a VA Form 21-526 or VA Form 21-526EZ. 2. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 3. Contact SSA and obtain copies of records related to the Veteran’s SSA disability benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. Associate any records obtained with the claims file. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the nodules in his lungs. All necessary testing and evaluation should be afforded to the Veteran. After a thorough review of the claims file, the examiner must address the following: (a) Provide an opinion as to whether the lung abnormalities and/or nodules as reflected on the CT scans of record are or have ever been considered lung cancer. (b) Provide an opinion as to whether it is at least as likely as not that the lung nodules had onset during the Veteran’s service or are otherwise related to his service. A complete rationale for each conclusion must be provided. The examiner must review and discuss the medical articles submitted by the Veteran in support of his claim within the rationale provided. 5. If the evidence shows that the nodules in the Veteran’s lungs are considered lung cancer but presumptive service connection cannot be granted, follow the remaining protocols as set forth under 38 C.F.R. §3.311. 6. Then, readjudicate the claim on appeal. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel