Citation Nr: 18102406 Decision Date: 05/15/18 Archive Date: 05/15/18 DOCKET NO. 16-04 954 DATE: May 15, 2018 REMANDED ISSUES Entitlement to service connection for a right armpit tumor disability, to include as a result of ionizing radiation exposure, is remanded. Entitlement to service connection for a thyroid disability, to include as a result of ionizing radiation exposure, is remanded. Entitlement to service connection for a colon disability, to include as a result of ionizing radiation exposure, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for paraesophageal hernia residuals is remanded. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for chronic cholecystitis is remanded. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for diverticulitis is remanded. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for residuals of large intestine resection is remanded. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for bilateral feet neuropathy is remanded. The Veteran served on active duty from September 1959 to February 1964. In February 2018, a videoconference hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 30 days in order to allow for the submission of additional evidence for consideration. [In March 2016, another Veterans Law Judge remanded the following three issues for additional development: entitlement to service connection for a left knee disability; entitlement to an initial rating in excess of 10 percent (prior to February 18, 2015) for chronic right knee patella subluxation and in excess of 30 percent (from April 1, 2016) for right total knee arthroplasty; and entitlement to an initial compensable rating for left shoulder residual scar from surgery. For the service connection issue, a January 2018 rating decision granted service connection for a left knee disability (rated as left knee degenerative joint disease with subluxing patella), and consequently this matter is no longer on appeal. For the increased rating issues, the RO is still in the process of completing the Board’s remand instructions, and therefore these two matters are not before the Board at this time.] 1. Entitlement to service connection for a right armpit tumor disability, to include as a result of ionizing radiation exposure, is remanded. 2. Entitlement to service connection for a thyroid disability, to include as a result of ionizing radiation exposure, is remanded. 3. Entitlement to service connection for a colon disability, to include as a result of ionizing radiation exposure, is remanded. As an initial matter, the Veteran contends that he was exposed to ionizing radiation during his military service in October 1961 while stationed at Thule Air Base in Greenland, at the time when the Tsar Bomba was detonated by the Soviet Union in the Arctic Circle. He also contends that some of his service records related to his service in Greenland may not have been obtained due to his secret clearance. The service personnel records currently in the claims file do confirm that he was granted a secret clearance in February 1960 and that he arrived at Thule Air Base in Greenland on October 24, 1961 (prior to the Tsar Bomba being detonated on October 30, 1961). On remand, any outstanding service records for the Veteran must be obtained. Regarding the claimed right armpit tumor disability, the service treatment records (STRs) currently in the claims file are negative for any complaints, findings, diagnoses, or treatment of such a disorder. Post-service, VA treatment records documented the Veteran’s diagnosis of a right axilla mass/abscess in December 2004 and his December 2004 surgery for incision and drainage (I&D) of this abscess. At his February 2018 hearing, he testified that his December 2004 surgery had revealed that his right armpit mass was a “malignant” tumor and that he was currently washing with a prescription antibiotic soap to keep it from growing back. Regarding the claimed thyroid disability, the STRs currently in the claims file are negative for any complaints, findings, diagnoses, or treatment of such a disorder. Post-service, VA treatment records beginning in September 1999 have documented the Veteran’s diagnosis of hypothyroidism. Regarding the claimed colon disability, the STRs currently in the claims file document the following findings. In June 1960, the Veteran was noted to have soft, mushy stool. In April 1961, an upper GI series revealed scarring and deformity of the duodenal bulb with a diagnosis of active duodenal ulcer (later characterized as peptic ulcer disease on his December 1963 separation examination report). In July 1962, he was assessed with prolapsed hemorrhoids. In July 1963, he was assessed with acute gastroenteritis, and it was noted at that time that he “[m]ust have a functional bowel syndrome also” and that he had occasional diarrhea. In November 1963, it was noted that he had diarrhea. Post-service, VA treatment records have documented his diagnoses of diverticulitis (beginning in June 1999 ) and colon polyps (beginning in December 1999). At an October 2012 VA intestinal examination, it was noted that he had undergone colon surgery for perforated diverticular disease in 2009 (which the Veteran described in a September 2012 statement as an “emergency surgery” at the Community Medical Center in Toms River, New Jersey), and the October 2012 VA examiner opined (with rationale) that the Veteran’s current colon condition with diverticulitis was less likely as not caused by his in-service peptic ulcer disease. At his February 2018 hearing, the Veteran testified that he was continuing to receive VA treatment for all of his claimed disabilities, as well as private treatment for such disabilities (currently from Dr. Kalinski in Toms River, New Jersey and previously from Dr. Curtis in Toms River, New Jersey). On remand, all outstanding VA treatment records as well as pertinent private treatment records must be obtained and associated with the claims file. Thereafter, if and only if such evidence reveals that the Veteran has been diagnosed with a radiogenic right armpit tumor disease, radiogenic thyroid disease, and/or radiogenic colon disease under 38 C.F.R. § 3.311(b)(2), then VA should develop the Veteran’s claim(s) as directed under 38 C.F.R. § 3.311. Furthermore, regardless of whether the Veteran has been diagnosed with a radiogenic colon disease, the Veteran should be scheduled for a VA colon/rectal examination with medical opinion addressing whether any colon disability diagnosed during the period of claim is related to any of the pertinent findings outlined in his STRs (as only his in-service peptic ulcer disease was addressed at the October 2012 VA intestinal examination). 4. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for paraesophageal hernia residuals is remanded. 5. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for chronic cholecystitis is remanded. 6. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for diverticulitis is remanded. 7. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for residuals of large intestine resection is remanded. 8. Entitlement to compensation under 38 U.S.C. § 1151 based on VA surgery in May 2001 for bilateral feet neuropathy is remanded. The Veteran contends that, as a result of undergoing VA surgery in May 2001, he currently suffers from paraesophageal hernia residuals, chronic cholecystitis, diverticulitis, residuals of large intestine resection, and bilateral feet neuropathy. The VA treatment reports currently in the claims file document that the Veteran underwent three separate VA surgeries in May 2001. On May 3, 2001, he underwent a paraesophageal hernia repair, cholecystectomy, and umbilical hernia repair. On May 13, 2001, he underwent a gastric perforation repair. On May 18, 2001, he underwent a tracheostomy. His total VA hospital course for these three surgeries lasted from May 3, 2001 until June 27, 2001. While a May 3, 2001 VA treatment record noted that there was “Consent signed” prior to the May 3, 2001 surgery, a copy of this informed consent document is not currently in the claims file. At his February 2018 hearing, the Veteran testified that he was continuing to receive VA treatment for all of his claimed disabilities, as well as private treatment for such disabilities (currently from Dr. Kalinski in Toms River, New Jersey and previously from Dr. Curtis in Toms River, New Jersey). On remand, all outstanding VA treatment records as well as pertinent private treatment records must be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s complete service personnel records and service treatment records (including any not previously obtained due to his secret clearance in service). 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities, including the Community Medical Center, Dr. Kalinski, and Dr. Curtis (all located in Toms River, New Jersey). Make two requests for the authorized records from these providers, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records for the period from July 2017 to the present. Obtain all VA treatment records pertaining to treatment received and surgeries performed from May 3, 2001 until June 27, 2001, that have not already been associated with the claims file, including any informed consent documentation. 4. If and only if any evidence obtained through the development requested in items 1, 2, and 3 reveals that the Veteran has been diagnosed with a radiogenic right armpit tumor disease, radiogenic thyroid disease, and/or radiogenic colon disease under 38 C.F.R. § 3.311(b)(2), then develop the Veteran’s assertion that he was exposed to radiation from the detonation of the Tsar Bomba while he was stationed at Thule Air Base in Greenland in October 1961. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion in accordance with 38 C.F.R. § 3.311(a). If more details are needed, contact the Veteran to request the information. 5. After the development requested in items 1, 2, and 3 has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any colon disability. The examiner must opine whether any such disability is at least as likely as not related to an in-service injury, event, or disease, with consideration of all pertinent STRs (as outlined above). The examiner must provide a complete rationale for any opinion expressed. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Yantz, Counsel