Citation Nr: 21076734 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 15-18 780 DATE: December 27, 2021 REMANDED Service connection for an esophagal disability, to include esophagitis and gastroesophageal reflux disease (GERD), is remanded. Service connection for back disability, to include as secondary to service-connected bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1976 to October 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for an esophagal disability, to include esophagitis and GERD When VA undertakes to obtain an examination, it must ensure that the examination and opinion therein is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In August 2020, the Board remanded this appeal for additional development. Unfortunately, upon careful review, the Board finds that another remanded is necessary for several reasons. First, the Board requested that the VA examination concerning the etiology of the Veteran's esophageal disability was warranted. In June 2021, a VA opinion was obtained which determined that it was less likely than not that the Veteran's esophageal condition was incurred in or caused by the claimed in-service injury, event, or illness. However, an adequate rationale was not provided and the VA examiner did not consider the Veteran's lay statements of experiencing nausea and vomiting since his military service. Therefore, a new VA opinion is warranted. Additionally, the Board acknowledged the Veteran's belief that his esophageal disability is related to his service in Enewetak Atoll cleanup project in 1977 without protective gear, but noted that the Veteran had not presented any competent or scientific evidence to demonstrate that his disability was related to exposure to ionizing radiation. Of noted, the Veteran completed a Radiation Risk Activity Information Sheet in September 2020. However, a dose estimate has not yet been prepared. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir. 1997). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed Veteran. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A "radiation-exposed" Veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed Veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a Veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the Veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311 (b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311 (c)(1). Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, "a task which includes the difficult burden of tracing causation to a condition or event during service." See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection claims based on in-service exposure to radiation may be addressed under 38 C.F.R. § 3.309(d) or § 3.311. Here, there is no evidence or assertion indicating that the Veteran engaged in one of the specific radiation risk activities set forth in 38 C.F.R. § 3.309(d)(2) (onsite participation in atmospheric detonation of a nuclear device). Accordingly, the presumptive provisions of 38 C.F.R. § 3.309 are not for application. Moreover, the Veteran's esophageal disability, to include esophagitis and GERD, are not among the diseases specified in either 38 C.F.R. § 3.309(d) or 38 C.F.R. § 3.311(b). However, the Veteran has consistently stated that his symptoms began since his service on the Enewetak Atoll in 1977; service which is confirmed by the Veteran's available service personnel records. Accordingly, given the evidence establishing the Veteran's presence on Enewetak Atoll during his active service, and news articles suggesting significant levels of radiation in the Marshall Islands, a dose estimate should be prepared. Further, in light of the medical evidence of record indicating a possible connection between the Veteran's asserted radiation exposure and his diagnosed esophageal disability, to include esophagitis and GERD, upon remand, the AOJ is to undertake all steps necessary for review and action pursuant to 38 C.F.R. § 3.311, to include referral to the Under Secretary for Health, through the Under Secretary for Benefits, for preparation of a dose estimate, to the extent feasible, based on available methodologies. In this regard, the Board emphasizes that although esophageal disabilities, to include GERD, are not radiogenic diseases as set forth in 38 C.F.R. § 3.311, the Veteran may nevertheless prove entitlement to service connection on a direct basis based on actual exposure. See Combee, 34 F.3d at 1043. Finally, given the evidence suggesting that the Veteran has current disabilities may be related to radiation exposure, a new VA etiological opinion is potentially required. 2. Service connection for a back disability, to include as secondary to service-connected bilateral pes planus The Veteran asserts that he has had chronic back pain since his military service and believes that his back disability is related to his service-connected pes planus. In August 2020, the Board remanded this matter for a VA etiological opinion. In June 2021, a VA opinion was obtained which determined that his back disability was less likely than not proximately due to or the result of the Veteran's service-connected bilateral pes planus. While the VA examiner stated that the medical evidence of record was reviewed and that there was no evidence of a back condition during service but that the Veteran had current diagnosis of lumbosacral strain, an adequate rationale on the secondary theory of service-connection or aggravation was not provided. As the Board finds that the June 2021 VA examination report is inadequate for adjudication purposes, a remand is warranted for a new opinion, with an adequate rationale, on whether the Veteran's back disability was caused or aggravated by his service-connected pes planus. The matters are REMANDED for the following action: 1. Obtain a dosage estimate from the Under Secretary for Health regarding the Veteran's radiation exposure on Enewetak Atoll in 1977, consistent with his radiation statement received in September 2020. 2. Following the completion of the above instructions, obtain an addendum opinion to the June 2021 VA examination to determine the nature and etiology of the Veteran's esophageal disability, to include esophagitis and GERD. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's esophageal disability, to include esophagitis and GERD, had clinical onset during active service or are related to any in-service disease, event, or injury, to include any verified ionizing radiation exposure. Why or why not? The VA examiner should provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In doing so, the VA examiner should consider and address in the rationale the Veteran's lay statements documenting the presence of his symptoms since service. The VA examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the VA examiner must consider all lay assertions, to include any allegations of continuity of symptomatology. 3. Obtain an addendum opinion to the June 2021 VA examination regarding the Veteran's secondary theory of entitlement to service connection for a back disability. If a physical examination is necessary to answer the Board's questions, one should be scheduled. The VA examiner is requested to address the following: a) Is it at least as likely as not (50 percent or greater) that the Veteran's back disability was caused by his service-connected pes planus. Why or why not? b) Is it at least as likely as not (50 percent or greater) that the Veteran's back disability was aggravated (made worse) by his service-connected pes planus. Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the disability by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the disability. If such cannot be done, it should be explained why. The VA examiner should provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In doing so, the VA examiner should consider and address in the rationale the Veteran's lay statements of chronic pain since service. The VA examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the VA examiner should consider all lay assertions, to include any allegations of continuity of symptomatology. 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.