Citation Nr: 21001765 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 04-07 637A DATE: January 11, 2021 REMANDED Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for prostate gland hypertrophy is remanded. Entitlement to service connection for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1956 to November 1959. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2007 and February 2013, the Veteran testified at hearing before Veterans Law Judges who have since retired. As such, the Veteran was afforded another hearing before the undersigned in May 2017. Transcripts of all three hearings are of record. In an April 2007 decision, the Board denied the claims on appeal. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2010 Memorandum Decision, the Court vacated the Board’s April 2007 decision and remanded the case to the Board for further action consistent with the Memorandum Decision. In September 2010 and April 2013, the Board remanded the claims for additional development. In September 2017, the Board requested a Veterans Health Administration (VHA) advisory medical opinion from a neurologist, which was obtained in November 2017. The claims were again denied by the Board in August 2018. The Veteran again appealed the Board’s decision to the Court. In a May 2020 Memorandum Decision, the Court vacated the Board’s August 2018 decision and remanded the case to the Board for further action consistent with the Memorandum Decision. The May 2020 Memorandum Decision indicated that the Board failed to address the Veteran’s statements that he often carried radioactive materials in his pocket and was directly exposed to radioactive materials while he did cleanup at Aberdeen Proving Grounds. The Court also stated that the Board erred in failing to address a theory of service connection raised by the Veteran. During the Veteran’s January 2007 hearing, the Veteran’s representative posed an alternative theory of service connection, indicating that while working on radar, the Veteran handled missile fuel and toxic chemicals without protective equipment. At the hearing the Veteran testified that when he fueled the missiles there were times when he did not wear protective clothing when he handled fuel and oxidizers, and that sometimes people would drop a nozzle and he had to reach down and pick it up. The Veteran’s DD Form 214 documents that his military occupational specialty (MOS) was Air Defense Missile Fire Control Crewman. In the May 2020 Memorandum Decision, the Court indicated that the Board must address this favorable evidence and address this theory of service connection. As the Veteran’s reported in-service exposure to jet fuel, and toxic chemicals is consistent with his duties as an Air Defense Missile Fire Control Crewman, the Board finds that remand is warranted for a VA examination and medical opinion which directly addresses this theory of entitlement. Additionally, the May 2020 Memorandum Decision indicated that the November 2016 and December 2016 opinions regarding the Veteran’s radiation exposure only considered the Veteran’s radiation exposure related to his military occupational specialty and that there had not been consideration of the Veteran’s statements that he often carried radioactive materials in his pocket and was directly exposed to radioactive materials while he did cleanup at Aberdeen Proving Ground. As the prior requests made for dose estimates and opinions do not appear to have specifically included these reports, remand is also necessary to obtain new dose estimates and opinions. The matters are REMANDED for the following action: 1. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), forward the records concerning the Veteran’s radiation exposure, including any service records, his statements and testimony regarding radiation exposure, and any other pertinent information to the Under Secretary for Health, for preparation of a revised dose estimate, to the extent feasible. (If a specific estimate cannot be made, a range of possible doses should be provided.) The Under Secretary should be advised that the National Personnel Records Center has indicated that the Veteran’s complete service records were destroyed in a fire and that there is a heightened duty to assist the Veteran in the development of his case. In providing a revised dose estimate, please ensure that the Veteran’s statements that he often carried radioactive materials in his pocket and was directly exposed to radioactive materials while he did cleanup at Aberdeen Proving Ground and other locations are specifically considered and addressed. 2. After completing the development requested in item 1, forward the case to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c) with consideration of the factors in § 3.311(e). 3. Obtain opinions on the nature and etiology of any cardiovascular disability, cataracts, prostate gland hypertrophy, and lumbar spine disability. The electronic claims file, including this remand, must be made available to the reviewing clinician. If the reviewing clinician(s) determine that an examination is needed for any of the claimed disabilities, then such should be scheduled (including via telehealth, if an in-person examination is not feasible). The clinician must provide opinions as to: Whether it is at least as likely as not (a 50 percent probability or greater) that a cardiovascular disability, cataracts, prostate gland hypertrophy, and a lumbar spine disability are related to the Veteran’s service, to include handling missile fuel and toxic chemicals without protective equipment. In providing an opinion, the examiner must note that the National Personnel Records Center has indicated that the Veteran’s complete service records were destroyed in a fire. The examiner should consider the lay statements of record regarding the nature and onset of symptoms. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. The mere absence of evidence of contemporaneous treatment in the service treatment records cannot, standing alone, serve as the sole basis for an unfavorable opinion. The Veteran’s DD Form 214 documents that his MOS was Air Defense Missile Fire Control Crewman, and he was awarded the marksman badge with artillery bar, the marksman badge with missile bar, and the sharpshooter badge with missile bar. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.