Citation Nr: 21067341 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-03 287 DATE: November 4, 2021 REMANDED Entitlement to service connection for dizziness, to include as a residual of radiation exposure is remanded. Entitlement to service connection for a heart condition, to include as a residual of radiation exposure, is remanded Entitlement to service connection for blood clots of bilateral lower extremities, to include as a residual of radiation exposure, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1957 to January 1961. In April 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the April 2021 Board hearing, the Veteran testified that his claims for entitlement to service connection for dizziness, a heart condition, and blood clots of the bilateral lower extremities, were all based on his claimed exposure to radiation as a ground radio operator during service. As such, the Board has re-characterized these issues to include as residuals of radiation exposure. Unfortunately, for the reasons discussed below, the Board finds that further development is necessary prior to adjudication of these claims. Outstanding Records During the April 2021 Board hearing, the Veteran testified that he received treatment for his heart condition, vertigo, and blood clots of the bilateral lower extremities at the Charleston Area Medical Center (CAMC), a private medical hospital. Specifically, the Veteran's testimony includes that these records provide evidence of current diagnoses related to his heart condition, vertigo, hearing loss, and blood clots in his bilateral lower extremities. The Veteran testified that in 2010, he had a heart valve replacement. The Veteran testified that he had stents put in his right and left legs. The Board notes that these records have not been associated with the claims file. Significantly, the Board notes that the current evidence of record does not contain evidence of current diagnoses related to the above claims. As such, the outstanding medical records are relevant to the Veteran's claims. Thus, prior to adjudication of this claim, to satisfy the Board's duty to assist, a remand is warranted to attempt to obtain these records. VA Examinations The Board notes that if, upon receipt of the outstanding medical records, these records do reveal that the Veteran has current diagnoses related to a heart condition, dizziness, hearing loss, and blood clots in his bilateral lower extremities, VA examinations are required for the reasons discussed below. Heart Condition With respect to the Veteran's heart condition, if the outstanding medical records reveal a diagnosis related to a heart condition, the Board finds a VA examination is necessary prior to adjudication of this claim. Here, the Veteran's in-service treatment records reflect that in April 1958, the Veteran reported pain in his chest and heart when taking deep breaths for the previous two to three months. Furthermore, in February 1959, the Veteran reported pain sometimes in the left shoulder and chest. Thus, a VA examination and opinion are warranted to ascertain whether the Veteran's in-service chest and heart pain is/are associated with his current heart disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Blood Clots of Bilateral Lower Extremities With respect to the Veteran's blood clots of the bilateral lower extremities, if the outstanding medical records reveal a diagnosis related to blood clots of the bilateral lower extremities, the Board finds a VA examination is necessary prior to adjudication of this claim. Here, the Board notes that the Veteran's service records reveal an automobile accident on May 4, 1960, which resulted in a knee abrasion. During the Veteran's Board hearing, the Veteran testified that the Veteran's injuries from the in-service automobile accident are related to his blood clots of his bilateral lower extremities. The Veteran testified after this in-service automobile accident, he gradually started experiencing numbness in his legs, which he believes was the start of the symptoms of his blood clots. Thus, if the outstanding records reveal a diagnosis related to blood clots of the lower extremities, a VA examination is warranted to ascertain if the Veteran's in-service automobile accident and the injuries associated with the accident are related to the Veteran's blood clots of the bilateral lower extremities. See McClendon, 20 Vet. App. 79. Non-Ionizing Radiation Additionally, the Veteran contends that his heart condition, dizziness, and blood clots of the bilateral lower extremities are due to his exposure to radiation during his military occupational specialty as a ground radio operator. As such, the Veteran is alleging exposure to non-ionizing radiation, rather than ionizing radiation. In a September 2017 Radiation Risk Activity Worksheet, the Veteran described that his exposure was when he worked as a ground radio operator in Driedorf, Germany. He noted that he worked with only receiver morse code key and a powerful transmitter, eight hours a day for three years. The Veteran notes that radiation came from the transmitter. The Veteran noted it was from about May 1958 to January 1961. See September 2017 Radiation Risk Activity Worksheet. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69 (1997). Non-ionizing exposure from radio or radar equipment is not the type of radiation exposure addressed by the VA regulations found at 38 C.F.R. §§ 3.309 and 3.311, which address exposure to ionizing radiation. However, the Board must also consider whether service connection can be established under a direct basis. VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). As such, the Board finds that VA medical opinions are also warranted to ascertain whether the Veteran's dizziness, heart condition, and blood clots of the bilateral lower extremities are related to his exposure to non-ionizing radiation as a ground radio operator. Bilateral Hearing Loss If it is determined that the Veteran has bilateral hearing loss per VA regulations, the Board finds that addendum opinion from an audiologist is warranted to determine whether the Veteran's bilateral hearing loss is at least as likely as not related to the Veteran's service, to include any in-service noise exposure as a ground radio operator. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding medical records, both VA and private medical records, relevant to the Veteran's claims on appeal, to include private records from Charleston Area Medical Center (CAMC). All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Upon completion of the above development to the extent possible, with respect to the Veteran's claim for a heart condition, schedule the Veteran for a VA examination to determine the nature and etiology of his heart condition. After performing any required tests, and reviewing the entire record, the examiner should provide an opinion responding to the following: a) Delineate any and all heart conditions, to include heart valve replacement. b) Address whether the Veteran's heart condition is at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service. In making this determination, the VA examiner must discuss the Veteran's in-service treatment records that reflect that in April 1958, the Veteran reported pain his in his chest and heart when taking deep breaths for the past two to three months; and that in February 1959, the Veteran reported pain sometimes in the left shoulder and chest. c) With respect to the Veteran's claimed non-ionizing radiation exposure, the VA examiner is asked to discuss whether the Veteran's claimed exposure to non-ionizing radiation as a ground radio operator is at least as likely as not related to his heart condition. In providing this opinion, the VA examiner is asked to consider and discuss the Veteran's statements in the September 2017 Radiation Risk Activity Worksheet. (In this regard, the Board reiterates that the Court has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67 (1997).) 3. With respect the Veteran's claim for blot clots of the lower bilateral extremities, schedule the Veteran for a VA examination to determine the nature and etiology of his heart condition. After performing any required tests, and reviewing the entire record, the examiner should provide an opinion responding to the following: a) Delineate any and conditions related to blot clots of the bilateral lower extremities, to include the Veteran's symptoms of numbness in the bilateral lower extremities. b) Address whether the Veteran's bilateral lower extremities are at least as likely as not (probability of 50 percent or greater) the result of a disease or injury incurred in or aggravated by service, to include as to due to the Veteran's in-service May 4, 1960 automobile accident. In providing this opinion, the VA examiner must discuss the Veteran's statements that after this in-service automobile accident, he gradually started experiencing numbness in his legs, which he believes was the start of the symptoms of his blood clots. The Board notes that the Veteran's in-service treatment records reflect a knee abrasion after the in-service automobile accident. c) With respect to the Veteran's claimed non-ionizing radiation exposure, the VA examiner is asked to discuss whether the Veteran's claimed exposure to non-ionizing radiation as a ground radio operator is at least as likely as not related to his blood clots of the bilateral lower extremities. In providing this opinion, the VA examiner is asked to consider and discuss the Veteran's statements in the September 2017 Radiation Risk Activity Worksheet. (In this regard, the Board reiterates that the Court has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67 (1997).) 4. With respect to the Veteran's claim for dizziness, if the medical records establish a diagnosis of related to dizziness, to include vertigo, forward the claims file and a copy of the remand for an opinion addressing whether or not any in-service non-ionizing radiation exposure as a ground radio operator is as likely as not related to the Veteran's dizziness, to include vertigo. d) In making this determination, the VA examiner is asked to consider and address the Veteran's statements in the September 2017 Radiation Risk Activity Worksheet. (In this regard, the Board reiterates that the Court has taken judicial notice that radar equipment emits microwave-type, non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67 (1997).) 5. With respect the Veteran's claim for bilateral hearing loss, if it is determined that the Veteran has bilateral hearing loss per VA regulations, request an addendum opinion from an audiologist to determine whether the Veteran's bilateral hearing loss is at least as likely as not related to the Veteran's service, to include any in-service noise exposure as a ground radio operator. Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.