Citation Nr: 21065677 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-32 668 DATE: October 27, 2021 REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for small intestine cancer is remanded. Entitlement to service connection for Non-Hodgkin's lymphoma is remanded. Entitlement to service connection for thyroid cancer is remanded. Entitlement to service connection for renal carcinoma is remanded. Entitlement to service connection for myelodysplasia is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1977 to December 1981. He died in February 2015. His surviving spouse has been substituted as the Appellant in these appeals. These appeals are from March 2015 and April 2016 rating decisions. In March 2019, the Board remanded these claims for additional development. Unfortunately, that development was not substantially completed. On remand, the previously directed development must be undertaken. 1. Entitlement to service connection for sinusitis is remanded. 2. Entitlement to service connection for small intestine cancer is remanded. 3. Entitlement to service connection for Non-Hodgkin's lymphoma is remanded. 4. Entitlement to service connection for thyroid cancer is remanded. 5. Entitlement to service connection for renal carcinoma is remanded. The Veteran asserted that all of the above disabilities were related to exposure to radiation from working on the missile firing system of his ship. The March 2019 Remand directed that a dose estimate be obtained from the Under Secretary for Health. Although the AOJ (agency of original jurisdiction) attempted to obtain records of radiation exposure from the NPRC and from the Department of Navy, no records were forwarded to the Under Secretary of Health, as per the Board's remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also 38 C.F.R. § 3.311(a)(2)(iii). The Board notes that the Veteran, prior to his death in October 2010 statements, and the Appellant, in a March 2016 statement, have asserted the Veteran was exposed to various types of radiation, including both ionizing and non-ionizing radiation. The United States Court of Appeals for Veterans Claims has taken judicial notice that radar equipment emits micro-wave type, non-ionizing radiation. See Rucker v. Brown, 10 Vet. App. 67, 69, 71-72 (1997). Therefore, the AOJ should obtain a VA opinion on the issue of whether the Veteran's disabilities are directly related to non-ionizing radiation exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In March 2016, the Appellant filed a number of medical articles pertaining to the Veteran's claimed disabilities, and also to the Veteran's exposure to asbestos, which appears to have been conceded by the AOJ (agency of original jurisdiction) in a May 2002 rating decision. The evidence the Appellant submitted suggests a relationship between asbestos and kidney cancer, which has not been considered by a VA examiner. VA medical opinions must be obtained that address the likelihood that these disabilities are related to asbestos or non-ionizing radiation exposure. In regard to the December 2020 VA examination opinion obtained for sinusitis, the VA examiner opined against service connection, largely on the basis of a lack of documentation of symptoms or treatment for sinusitis in the years following separation from service, which is not dispositive of whether there is a relationship. This disability will also be reconsidered by the VA examiner. 6. Entitlement to service connection for myelodysplasia is remanded. The Veteran's myelodysplasia has been related to chemotherapy treatment for his cancers, and so this claim is inextricably intertwined with the above claims, which means that it must be remanded along with the above before it may be adjudicated. The matters are REMANDED for the following action: 1. Request a radiation dose estimate from the Under Secretary of Health. The Under Secretary of Health is asked to consider the Veteran's assertion that he was exposed to radiation from the 55 radar in the guided missiles firing system of his ship while on watch duty, which is discussed in an October 2010 statement, when preparing this dose estimate. Thereafter, if it is determined that the Veteran was exposed to ionizing radiation, refer the Veteran's cancer claims to the Under Secretary for Benefits for further consideration in accordance with paragraphs (c)-(e) of 38 C.F.R. § 3.311. 2. After completion of the above, forward the Veteran's file to the appropriate examiner for opinions on whether it is as likely as not (50/50 probability or greater) that the Veteran's sinusitis was related to his active service, to include consideration of asbestos and/or non-ionizing radiation exposure. His STRs show that he had sore throat and runny nose that was attributed to a viral syndrome in 1979. His STRs also contained an undated Report of Medical History that shows he checked off a history of sinus problems. In his enlistment Report of Medical History, he checked no history of sinusitis, thus suggesting the undated record occurred after he started active duty. The examiner is asked to provide an opinion on whether his sinusitis was related to his symptoms and reported sinusitis during service. The examiner is advised that the record does not contain medical records from 1981 until the mid-1990s, and therefore a lack of documentation of treatment is not dispositive of the issue, although it may be a factor. The record shows he was likely exposed to asbestos. There is also an assertion of exposure to non-ionizing radiation (see statements from October 2010 and March 2016). The examiner is asked to review the literature and provide an opinion on whether sinusitis is as likely as not related to exposure to asbestos or to non-ionizing radiation. All opinions must be supported with explanation. 3. After completion of the first directive, forward the claims file to an appropriate examiner for a report on whether it is as likely as not (50 percent or greater probability) that small intestine cancer, Non-Hodgkin's lymphoma, thyroid cancer, and/or renal carcinoma are related to the Veteran's service. The Veteran, October 2010 statements, and the Appellant, in a March 2016 statement, asserted toxic exposures, including to asbestos and non-ionizing radiation. The examiner is asked to review the relevant literature and provide opinion for each claimed cancer as to the likely that it is related to either exposure. All opinions must be supported with explanation. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.