Citation Nr: 21001710 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-14 226 DATE: January 11, 2021 REMANDED Entitlement to service connection for thyroid cancer, to include as due to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1961 to September 1965. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Veterans Law Judge during a February 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in July 2018, wherein the Board remanded for additional development. The matter has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran contends that his thyroid cancer is due to his active duty service. Specifically, that he was exposed to ionizing radiation when he was assigned to clean the inside and outside of aircraft operating as part of Operation Dominic during his time when stationed at Larson Air Force Base (AFB) and this exposure caused his thyroid cancer. As relevant to this claim, service connection for a disability that is claimed to be attributable to ionizing radiation exposure during service may be established in three different ways. Ramey v. Brown, 9 Vet. App. 40 (1996). First, certain diseases may be presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) for a radiation-exposed Veteran. A "radiation-exposed" Veteran is one who participated in a listed radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving an atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, internment as a prisoner of war (POW) in Japan during a specified period, or service at certain specified sites. 38 C.F.R. § 3.309(d)(3). Given the Veteran's service dates and locations, he does not meet the criteria for this first category. Thyroid cancer is a listed disease under 38 C.F.R. § 3.309(d). However, while acknowledging the Veteran's exposure to radiation, the Board finds that he is not a "radiation-exposed" Veteran within the meaning of the regulation as there is no evidence, and he does not contend, that he participated in any of the radiation-risk activities listed by the regulation. As he is not a "radiation-exposed" Veteran, the presumptive provisions of U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) are not applicable. Second, radiogenic diseases may be service connected under 38 C.F.R. § 3.311, which does not provide presumptive service connection, but rather outlines a procedure to be followed for adjudication purposes. Medical opinions are ultimately the criteria upon which service connection rests under this regulation. The provisions apply when: (1) a Veteran was exposed to ionizing radiation in service; (2) he subsequently developed a radiogenic disease; and (3) such disease first became manifest within a specified period. For cancer, the disease must have manifested five years or more after exposure. 38 C.F.R. § 3.311(b)(5). If these requirements are met, a request will be made for records regarding radiation exposure and the case will be referred to the Under Secretary for Benefits for review as to whether sound scientific medical evidence supports the conclusion that it is at least as likely as not that the Veteran's disease resulted from radiation exposure during service. 38 C.F.R. § 3.311(b). Third, direct service connection can be established by showing that the disability being claimed was incurred during or aggravated by service, including presumptive service connection for chronic disease. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). For presumptive service connection for chronic disease, the disease must have manifested to a compensable degree within one year of the date of separation from service. 38 C.F.R. § 3.309(a); 38 C.F.R. § 3.307(a)(3). As reflected in his treatment records, the Veteran's thyroid cancer did not manifest within a year of his separation from service, therefore precluding him from the above-noted chronic disease presumption. Id. The record does reflect, however, that, according to the second category, he (1) was exposed to ionizing radiation during his service, (2) he subsequently developed a radiogenic disease (namely, thyroid cancer) and (3) the cancer manifested five years or more after exposure (here, it manifested in 2012, therefore approximately forty-nine years after exposure). For all claims where radiation exposure during service is claimed and a radiogenic disease is diagnosed after service, 38 C.F.R. § 3.311 compels the forwarding of all records pertaining to the Veteran's radiation exposure in service to the Under Secretary for Health. The Under Secretary of Health is responsible for the preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). After it is determined by the dose assessment that the Veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b). When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311(e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311 (c)(1). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311 (c)(1) (2017). This section provides two options: (i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the Veteran's disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section. (ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the Veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction, in writing, setting forth the rationale for this conclusion. 38 C.F.R. § 3.311(c)(1). In July 2018, the Board remanded the case for referral to the Under Secretary for Heath for a radiation dose estimate and to the Under Secretary for Benefits for an advisory opinion as to whether the Veteran’s thyroid cancer is related to his exposure to ionizing radiation, specifically to include through exposure to ionizing radiation from cleaning and maintaining aircraft contaminated as part of Operation Dominic I at Larson AFB, consistent with the requirements of 38 C.F.R. § 3.311. Consequently, a dose estimate and advisory medical opinion were requested pursuant to 38 C.F.R. § 3.311. The Director, Post-9/11 Era Environmental Health Program stated that although they are fairly certain the Veteran was not exposed, they will assign a radiation dose of 1.0 rem (total effective dose equivalent) to the Veteran, which was calculated as 0.5 rem per year x 2 calendar years of claimed assigned at Larson AFB (1962 and 1963). The Director explained that the assigned dose gives benefit of the doubt to the Veteran versus the Air Force’s lack of dose monitoring records. Ultimately, the Director of the Post-9/11 Era Environmental Health Program found that since the Veteran’s estimated lifetime total radiation dose (1.0 rem) did not exceed 100 mSv (10 rem) above natural background, it is our opinion that it is unlikely that thyroid cancer was caused by exposure to ionizing radiation during military service. In October 2020, an advisory opinion from the Under Secretary for Benefits was issued indicating that, based on the dose estimates provided, it was unlikely the Veteran's thyroid cancer could be attributed to radiation exposure during his military service. The Under Secretary for Benefits determined in the October 2020 advisory opinion that based on the October 2020 Director of the Post-9/11 Era Environmental Health Program advisory medical opinion, it is her opinion that it is unlikely that the Veteran’s thyroid cancer was caused by exposure to ionizing radiation during military service. In this regard, the Under Secretary for Benefits did not use the correct legal standard as outlined in the regulations when forming her opinion. The regulations state that the Under Secretary for Benefits must be convinced that sound scientific and medical evidence supports the conclusion that it is at least as likely as not that the Veteran’s disease resulted from exposure to radiation in service or that there is no reasonable possibility that the Veteran’s disease resulted from radiation exposure in service. The Under Secretary for Benefits advisory opinion to the RO merely reiterated the Director of the Post-9/11 Era Environmental Health Program’s advisory opinion and stated that is unlikely that the Veteran’s thyroid cancer was caused by exposure to ionizing radiation during military service. Furthermore, notwithstanding the above, when a veteran is found not to be entitled to service connection under 38 C.F.R. § 3.311, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee, 34 F.3d at 1043-1044. Thus, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to exposure to ionizing radiation but must also determine whether his disability is otherwise the result of active service. To date, there has been no VA medical opinion that had addressed whether the Veteran’s thyroid cancer is related to his active duty service. As such, remand is warranted to correct the deficiencies outlined above. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. Forward the Veteran’s claim to the VA Under Secretary of Benefits for another advisory opinion regarding the Veteran’s exposure to ionizing radiation and his thyroid cancer. In any review of the claim under 38 C.F.R. § 3.311 (c), any opinion from the VA Under Secretary for Benefits, or designee of the VA Under Secretary for Benefits, of no reasonable possibility that the thyroid cancer was caused by exposure to radiation in service must be accompanied by a thorough explanation of rationale for such conclusion. In accordance with the guidance in Stone v. Gober, 14 Vet. App. 116 (2000), such opinion need not explicitly discuss each 38 C.F.R. § 3.311(e) factor but it must be more than a cursory explanation and a mere restatement of any opinion from the office of the VA Under Secretary for Health. 3. After development of the above, arrange for a VA medical opinion to address the claim for thyroid cancer. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The record, including a copy of this remand and all findings by the VA Under Secretary for Benefits, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The need for any additional testing is again left to the discretion of the examiner. The examiner is requested to provide the following opinion: Is it at least as likely as not (a 50% or greater probability) that the Veteran’s thyroid cancer is caused by or related to the Veteran's service/events therein, to specifically include his acknowledged exposure to ionizing radiation in service? The examiner must address the May 2012 VA treatment record noting that the “patient likely had radiation exposure in Pacific test areas and his hyperparathyroidism and follicular thyroid carcinoma are likely to be related to this exposure.” In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 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, assertions, and the advisory opinion from the VA Under Secretary for Benefits. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.