Citation Nr: 21003244 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-32 403 DATE: January 21, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to September 10, 2018, and in excess of 20 percent thereafter, for the service-connected left shoulder strain with osteoarthritis is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to radiation and/or herbicides is remanded. Entitlement to service connection for a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1959 to August 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2012 and January 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In February 2019, the Board last remanded this matter to the RO for further development. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 1. Entitlement to a rating in excess of 10 percent prior to September 10, 2018, and in excess of 20 percent thereafter, for the service-connected left shoulder strain with osteoarthritis Unfortunately, a remand is necessary as there has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, although the November 2019 VA examiner found that the Veteran’s left shoulder range of motion exhibited pain with flexion, abduction, external rotation, and internal rotation, the VA examiner did not record the range of motion measurements where pain began, as required to do so in the February 2019 Board remand directives and under Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, although the VA examiner found objective evidence of pain when the left shoulder was used in non-weightbearing, the examiner did not provide range of motion measurements or provide an explanation for his failure to do so. The Board notes that the other medical evidence of record also indicates that the Veteran’s pain limited his motion. For instance, an October 2019 VA treatment record reflects that the Veteran could raise his arm less than halfway then had to stop due to pain. Accordingly, the Board finds that a remand is warranted to afford the Veteran a VA examination that complies with the prior Board remand directives and more accurately assesses the severity of his disability. 2. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to radiation and/or herbicides The Veteran contends that his diabetes mellitus, type II, is the result of his military service, to include as due to herbicide exposure and/or radiation exposure. Regarding his radiation exposure, the Veteran initially asserted that he was exposed to radiation as a result of cleaning off and servicing airplanes that flew into radiation or radioactive clouds while he was stationed in Alaska. He described these planes as weather planes and reported that they were moved to the other side of the base to be hosed off separately. As such, in its February 2017 decision, the Board instructed the RO, on remand, to attempt to verify whether the Veteran was exposed to radiation in service. Following the February 2017 Board remand, the RO sought evidence, which included requesting a DD 1141 Record of Exposure to Ionizing Radiation or an equivalent record of occupational radiation exposure, concerning whether the Veteran had been exposed to radiation during his service in Alaska from January 1967 through June 1979. See December 2017 development letter. VA also notified the Veteran to provide any further information concerning exposure to radiation. See March 2017 VA notification letter. Thereafter, and in response to VA’s letter, the Veteran reported that he remembered that he was required to wear a monitor badge (film badge) while participating in an initial testing program with C-141 aircrafts. Specifically, he asserted that he was part of a maintenance/inspection crew that participated in a testing procedure for the C-141 aircraft between 1964 and 1966 at Tinker Air Force Based (AFB) and Edwards AFB. He explained that he had to wear a monitor for radiation because counter-balance weights on the wings were made of uranium covered with lead and that the crewman were only allowed to work near these weights for thirty minutes at a time. See February 2018 Statement in Support of Claim. Around the same time, VA received memoranda from the Air Force Medical Support Agency (AFMSA) and the Air Force Technical Applications Center (AFTAC) noting that there was no external or internal radiation exposure data for the Veteran, and that AFTAC was unable to confirm that the Veteran was exposed to radiation in the performance of his military duties while stationed at Elmendorf AFB. Specifically, the AFTAC letter discusses non-US nuclear debris collection activities at Elmendorf AFB in relation to the Veteran’s service there. Despite VA’s attempts to verify radiation exposure while the Veteran served in Alaska and the AFMSA and AFTAC responses relating to such, VA did not attempt to verify the Veteran’s claimed radiation exposure between 1964 and 1966 while working with C-141 aircrafts. Additionally, the AFTAC letter is only specific to radiation exposure based on the Veteran’s service in Alaska. The Veteran’s service personnel files confirm that he was stationed at Tinker AFB from April 1964 through December 1966. The Board notes that a chronological listing of the Veteran’s service shows that he served in Travis AFB, in California, in 1963 and 1964 but does not show that he served in Edwards AFB, in California. Moreover, the Veteran’s performance reports at Tinker AFB indicate that he was a supervisor and technician at C-141 Periodic Docks and served as an Aircraft Mechanic where he conducted periodic inspections on the C-141 aircraft. The Veteran’s performance reports at Travis AFB show that that he inspected C-135A and C-135B aircrafts. In light of this information, the Board finds that a remand is warranted in order for the RO to attempt to verify any radiation exposure related to the Veteran’s work with C-141 aircrafts between 1964 and 1966. 3. Entitlement to service connection for a TDIU due to service-connected disabilities The Veteran’s claim asserting entitlement to a TDIU must also be remanded, as it is inextricably intertwined with the other issues on appeal. In other words, the remanded claims may significantly impact the claim of TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer action on this issue at this time. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding VA treatment records. The last VA treatment of record is dated October 2020. 2. Provide the Veteran with another opportunity to identify/and or submit any outstanding records related to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records, should be obtained. 3. Conduct the appropriate development, to include contacting the service department or other appropriate Defense Department Agency as indicated by the appropriate regulations and manual provisions with respect to the development of claims based upon exposure to ionizing radiation, to determine the Veteran’s exposure to ionizing radiation while working on C-141 aircrafts between 1964 and 1966 at Tinker AFB and to any radiation exposure at Travis AFB during this time, taking into account the Veteran’s report that he wore monitor/dosimeter/film badges while working on the C-141 aircrafts, that he had wear a monitor for radiation because counter-balance weights on the wings were made of uranium covered with lead, and that crewman were only allowed to work near these weights for thirty minutes at a time. 4. After conducting the above development, if deemed necessary, forward all records containing information pertinent to the Veteran's in-service radiation exposure to the Under Secretary for Health for a radiation dose estimate, to the extent feasible, based on available methodologies. See 38 C.F.R. § 3.311(a)(2)(iii). If the dose estimate is above zero, the claims file should be referred to the Under Secretary for Benefits for an advisory opinion. 5. Then, schedule the Veteran for an updated VA examination to determine the severity of his service-connected left shoulder strain with osteoarthritis. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the Veteran’s disability should be identified. The examiner should respond to the following: (a) The examiner MUST TEST the Veteran’s range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements (b) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s disability. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left shoulder and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. (e) The examiner is also asked to provide a RETROSPECTIVE opinion concerning the severity of the Veteran’s left shoulder disability from March 2011 (i.e., from one year prior to the Veteran’s increased rating claim). To the extent possible, the examiner should discuss the severity of the left shoulder disability throughout the appeal period, and, if feasible, provide an ESTIMATED degree of any additional range of motion loss due to repeated use over time and flare-ups during the appeal period. In providing this opinion, VA examiner should consider the prior VA examination reports. See, e.g., November 2019, September 2018, and June 2012 VA examinations. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report Any opinion expressed by the VA examiner should be accompanied by complete rationale.   6. Ask Veteran to complete and return a up-to-date VA-21-8940, Application for Increased Compensation Based on Unemployability. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.