Citation Nr: 21067423 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-05 784 DATE: November 4, 2021 REMANDED Entitlement to service connection for glioblastoma multiforme of the brain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1985 to May 2007. The Veteran died in December 2017 and the Appellant has been substituted into the claims pending on appeal. She claims as the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) from January 2014 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded for further development in August 2017, January 2018, and February 2019. 1. Service connection for glioblastoma multiforme of the brain is remanded. Regrettably, another remand is required to complete the development required for the claim for service connection for brain cancer. In cases involving exposure to ionizing radiation, VA has additional duties. Specifically, in claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in §3.307 or §3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment must be made as to the size and nature of the radiation dose or doses. Particularly, a request must be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311 (a)(1); 3.311 (a)(2)(iii). Thereafter, if evidence suggests that the Veteran was exposed to ionizing radiation as a result of active service, the Veteran subsequently developed a radiogenic disease, and that disease became manifest within a specified time, then the claim must be referred to the Under Secretary for Benefits for initial consideration. See 38 C.F.R. § 3.311 (b)(1). Here, the Veteran had glioblastoma multiforme brain cancer, and brain cancers are listed as radiogenic diseases. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). The cancer was first identified after service and do not appear to have been manifest to a compensable degree within any applicable presumptive period as specified in 38 C.F.R. § 3.307 or § 3.309. The Veteran contended that his cancer was caused by exposure to depleted uranium during his service in Southwest Asia, Kuwait, Saudi Arabia, and Bosnia, in particular during Operations Desert Shield and Storm, Operation Just Cause, Operation Enduring Freedom, and Operation Joint Endeavor. The Veteran's service medical records and personnel records were requested and received. Additional requests for records were made to the Army Dosimetry Center, which was unable to locate any records for the Veteran. The Agency of Original Jurisdiction (AOJ) attempted to verify the Veteran's exposure to ionizing radiation by making multiple requests to the Military Records Research Center (MRRC), but all requests yielded the response that MRRC "does not research exposure to environmental toxins or substances other than those identified in M21-1 IV.ii.1.H." No further development was undertaken. While the M21-1 is not binding on the Board, the MRRC did not provide information as to whether the Veteran was exposed to ionizing radiation and redirected the AOJ to the appropriate authorities to attempt to verify such exposure occurred. We note that the correct authorities per the M21-1 appear to be the Veteran's service department and the Defense Threat Reduction Agency. Records from the Army Dosimetry Center have already been requested. However, additional development is still required to determine whether the Veteran was exposed to ionizing radiation during his activities while deployed in support of Operations Desert Shield and Storm, Operation Just Cause, Operation Enduring Freedom, and Operation Joint Endeavor. Specifically, a request should be made to the Defense Threat Reduction Agency for any available records concerning the Veteran's exposure to ionizing radiation and depleted uranium. As noted above, in all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in § 3.307 or § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. See 38 C.F.R. § 3.311 (a)(1). Here, no assessment was made as to the size and nature of any radiation doses the Veteran may have received. While few records were obtained that specifically confirm the Veteran was exposed to ionizing radiation, records confirming that the Veteran served in Southwest Asia, Kuwait, Saudi Arabia, and Bosnia were obtained. 38 C.F.R. § 3.311 (2)(iii) makes clear that all records concerning exposure to radiation will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate. Following receipt of any relevant records from the Defense Threat Reduction Agency, all available records concerning the Veteran's exposure to radiation should be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate in accordance with 38 C.F.R. § 3.311. In addition, the Board's June 2020 remand instructions state that an addendum opinion was to be obtained to determine the nature and etiology of the Veteran's glioblastoma multiforme upon receipt of a dose estimate. Once the dose estimate is obtained, another addendum opinion should be obtained so that a VA examiner may appropriately consider the dose estimate. 2. Entitlement to a TDIU is remanded. The Veteran had submitted evidence that he was unemployable and disabled because of his glioblastoma multiforme. We note that the Veteran filed an application for entitlement to a TDIU in June 2017, which was denied in an August 2017 rating decision. However, the issue of unemployability was initially raised in January 2013 along with the informal claim for service connection for glioblastoma multiforme. The issue of entitlement to a TDIU is inextricably intertwined with the claim for service connection for glioblastoma multiforme. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Remand of the TDIU claim is required. The matters are REMANDED for the following action: 1. Request from the appropriate agencies, including the Defense Threat Reduction Agency, any available records, information, and dosage assessments concerning the Veteran's exposure to ionizing radiation from depleted uranium during the Veteran's service. 2. Forward the Veteran's personnel records, service treatment records, post-service medical records, and other pertinent documents to the VA Under Secretary for Health for a dose estimate based on his service in accordance with 38 C.F.R. § 3.311 (a)(2)(iii). 3. Upon receipt of a dose estimate, obtain an addendum opinion to determine the nature and etiology of the Veteran's glioblastoma multiforme of the brain. Specifically, the examiner should address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's brain cancer is related to any exposure to ionizing radiation from depleted uranium during his service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.