Citation Nr: 21073787 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 20-05 535 DATE: December 10, 2021 ORDER As new and material evidence has been received, the claim of entitlement to service connection for non-malignant thyroid nodular disease is reopened. REMANDED The claim of service connection for non-malignant thyroid nodular disease as a result of exposure to ionizing radiation is remanded. FINDINGS OF FACT 1. A November 2015 rating decision denied service connection for non-malignant thyroid nodular disease. The Veteran was notified of the rating action and of his appellate rights. The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the November 2015 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for non-malignant thyroid nodular disease; the evidence is neither cumulative nor redundant of evidence already of record and it raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2015 rating decision that denied the Veteran's claim for entitlement to service connection for non-malignant thyroid nodular disease is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the November 2015 rating decision that is sufficient to reopen the Veteran's previously denied claim for service connection for non-malignant thyroid nodular disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from December 1960 to December 1964. The Veteran and his representative testified before the undersigned Veterans Law Judge at an August 2021 Board hearing. A transcript of the hearing has been obtained and associated with the claims file. The Claim to Reopen Generally, a final and unappealed decision issued by the Agency of Original Jurisdiction or a decision from the Board may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception exists if new and material evidence is presented or secured with respect to a claim which has been disallowed, then VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. "New evidence" means existing evidence not previously submitted to agency decision-makers. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki the Court interpreted the phrase "raises a reasonable possibility of substantiating the claim" in 38 C.F.R. § 3.156(a) as creating a low threshold, that is "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, according to Shade evidence is new if it has not been previously submitted to agency decision makers, and it is material if when taken with the evidence of record it could at least trigger VA's duty to assist by providing a medical opinion. Id. at 118. When determining whether evidence is to be considered new and material, the evidence will be presumed to be credible. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran was denied service connection for non-malignant thyroid nodular disease in a November 2015 rating decision as there was no evidence of a diagnosis of non-malignant thyroid nodular disease. The Veteran did not appeal the November 2015 rating decision, nor did he submit any new and material evidence within a year of the decision. See 38 C.F.R. § 3.156(b). As such, the November 2015 rating decision became final. In October 2018, the Veteran filed a claim to reopen the issue of service connection for non-malignant thyroid nodular disease as a result of exposure to ionizing radiation. In a November 2018 decision, the VA determined that the Veteran's claim could not be reopened as new and material evidence since the November 2015 rating decision was not submitted. Thus, the claim was not reopened. Evidence received since the final November 2015 rating decision includes, but is not limited to, private treatment records demonstrating an abnormal ultrasound finding in the Veteran's right thyroid and the presence of a thyroid nodule. In addition, the Veteran provided testimony at a February 2021 Board hearing that he was treated for this condition and was told by a doctor that his radiation exposure in service possibly led to this diagnosis. This evidence was not of record at the time of the November 2015 rating decision, and it relates to an unestablished fact necessary to establish the claim, in particular, the private treatment records show the presence of an abnormal thyroid nodule. The Board finds the evidence to be both new and material, and therefore the claim for service connection for a non-malignant thyroid nodular disease as a result of exposure to ionizing radiation is reopened. REASONS FOR REMAND The claim of service connection for non-malignant thyroid nodular disease as a result of exposure to ionizing radiation The Veteran asserts that he is entitled to service connection for non-malignant thyroid nodular disease. Specifically, he contends that his condition was caused by or otherwise related to radiation exposure during active service during Operation Dominic while onboard the USS Halsey Powell in 1962. Service connection for disabilities that are claimed as being attributable to exposure to ionizing radiation during service can be established via any one of three different methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997), Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, certain types of cancer are presumptively service connected specific to radiation-exposed veterans. 38 U.S.C. § 1112(c), 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service-connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. Combee v. Brown, 34 F.3d 1039 (Fed Cir 1994). Service connection for the Veteran's non-malignant thyroid nodular disease in this case cannot be presumed under 38 C.F.R. § 3.309(d) because the Veteran did not have the type of service specified in order for such a presumption to attach. However, non-malignant thyroid nodular disease is recognized under 38 C.F.R. § 3.311(b)(2)(xvii) as being a "radiogenic disease" that may be induced by ionizing radiation. According to the Veteran's Board hearing testimony, he was told by a doctor that his thyroid condition was linked to his radiation exposure during service. It is also unclear whether the abnormal right thyroid noted on the September 2018 thyroid ultrasound report constitutes non-malignant thyroid disease. 38 C.F.R. § 3.311 contains specific instructions for the development of claims based on exposure to ionizing radiation. Specifically, 38 C.F.R. § 3.311 (a) requires VA to request 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 treatment 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)(2)(iii). After it is determined by the dose assessment that the Veteran was exposed to radiation, the RO is then required to refer the case to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311 (b). When the claim is referred, the Under Secretary for Benefits shall consider the claim with reference to the factors specified in 38 C.F.R. § 3.311 (e) and may request an advisory opinion from the Under Secretary for Health. 38 C.F.R. § 3.311 (c)(1). After referral, the Under Secretary for Benefits must then determine the likelihood that the claimant's exposure to radiation in service resulted in the radiogenic disease. 38 C.F.R. § 3.311 (c)(1). The Board finds that this must be completed. The matter is REMANDED for the following action: Forward the Veteran's claim file to the VA Under Secretary for Benefits (or other designee) for appropriate action consistent with 38 C.F.R. §§ 3.311 (a)(2)(iii) and 3.311(c), to include obtaining from VA's Under Secretary for Health an ionizing radiation dose estimate, to the extent feasible, based on available methodologies; and, an opinion as to whether it is at least as likely as not that the Veteran's non-malignant thyroid nodular disease was caused by ionizing radiation exposure during service. A comprehensive and detailed rationale should be provided for the conclusions reached. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.