Citation Nr: 1824286 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-17 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for residuals of follicular adenoma status post thyroid lobectomy, to include as due to ionizing radiation and herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2016. A transcript of that proceeding is associated with the record. During the hearing, the Veteran submitted additional evidence along with a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). The Board notes that the Veteran's appeal originally included the issues of entitlement to service connection for hemochromatosis and malignant glomus. However, he did not perfect those appeals following the issuance of the March 2014 statement of the case. Rather, he specifically limited his appeal to the issue listed on the title page in his April 2014 substantive appeal. Therefore, those issues are no longer in appellate status, and no further consideration is necessary. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran has contended that he has a thyroid disorder that is due to in-service exposure to environmental hazards, to include ionizing radiation, Agent Orange, contaminated water, napalm, electronic emissions, and lead. See, e.g., November 2009 statement in support of claim; December 2016 Board hearing transcript. He has also asserted that his thyroid disorder is related to his symptoms and diagnosis of mononucleosis during service. See, e.g., August 2011 statement in support of claim; December 2016 Board hearing transcript, at 11. The Veteran's post-service medical records show that he underwent a left thyroid lobectomy for a follicular adenoma in December 2006. Thereafter, his medical records note assessments of hyperparathyroidism and hypothyroidism. The Board notes that non-malignant follicular adenoma is not an enumerated disease potentially entitled to presumptive service connection under 38 C.F.R. § 3.309(d)(2). Accordingly, the presumptive provisions of 38 C.F.R. § 3.309(d) are not for application in this case. Nevertheless, the Veteran may be entitled to special development procedures pursuant to 38 C.F.R. § 3.311. Pursuant to 38 C.F.R. § 3.311, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifested to a compensable degree within any other applicable presumptive period, 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 doses. 38 C.F.R. § 3.311(a)(1). In this case, the Veteran was diagnosed with a non-malignant follicular adenoma. Notably, non-malignant thyroid nodular disease is a radiogenic disease under 38 C.F.R. § 3.311(b)(2). Moreover, the Veteran has contended that the disease is the result of exposure to ionizing radiation while performing his duties as a weapons mechanic during service. See, e.g., December 2016 Board hearing transcript, at 3. In support of his claim, the Veteran submitted numerous articles regarding nuclear weapons that he handled during service. The record reflects that the AOJ requested the Veteran's service personnel records and his DD Form 1141 to attempt to confirm his exposure to radiation. However, there is no indication that any further efforts were made to attempt to verify the Veteran's alleged radiation exposure. Therefore, a remand is necessary for additional development, to include obtaining any records pertaining to whether the Veteran had radiation exposure in service as outlined by 38 C.F.R. § 3.311(a)(2)(iii). Thereafter, the AOJ should develop the claim in accordance with 38 C.F.R. § 3.311. The Veteran has also contended that his thyroid disorder is due to exposure to herbicide agents during service. See, e.g., September 2009 statement in support of claim. VA has conceded that the Veteran was exposed to herbicide agents during his service at the Udorn Royal Thailand Air Force Base. Although follicular thyroid adenomas are not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). During the December 2016 hearing, the Veteran testified that he discussed the relationship between his thyroid disorder and herbicide agents with his doctors, and they informed him that his disorder was due to environmental causes. In addition, in support of his claim, the Veteran submitted articles regarding trichloroethylene and ethylbenzene. However, there is no indication that any development has been conducted to attempt to verify the Veteran's other claimed exposures, to include hazardous chemicals, lead, and electronic emissions. Therefore, on remand, the AOJ should conduct all necessary development to verify the Veteran's potential exposure to environmental hazards at the Udorn Royal Thai Air Force Base, Griffiss Air Force Base (AFB), Luke AFB, and Lowry AFB. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of any current thyroid disorder. Accordingly, the case 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 a thyroid disorder 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 t to verify the Veteran's alleged exposure to lead, contaminated water, and other environmental hazards while stationed at the Udorn Royal Thai Air Force Base, Griffiss AFB, Luke AFB, and Lowry AFB. The AOJ should document all efforts undertaken and the responses received. 3. 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. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of thyroid disorder that may be present. Any and all 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. It should be noted 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 also note that VA has conceded that the Veteran was exposed to herbicide agents during his service at the Udorn Royal Thai Air Force Base. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current thyroid disorder was causally or etiologically related to the Veteran's military service, to include exposure to herbicide agents (notwithstanding the fact that it may not be a presumed association) and any environmental hazards therein. (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. 5. 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 reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).