Citation Nr: A21019593 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 201022-116923 DATE: December 8, 2021 ISSUES 1. Whether new and relevant evidence has been received sufficient to readjudicate the claim for service connection for parathyroid adenoma. 2. Entitlement to service connection for parathyroid adenoma. ORDER New and relevant evidence has been received sufficient to readjudicate the claim of entitlement to service connection for parathyroid adenoma. Entitlement to service connection for parathyroid adenoma is granted. FINDINGS OF FACT 1. Service connection for parathyroid adenoma was denied in a September 2016 rating decision that was not appealed. 2. Evidence that may prove or disprove the issue of entitlement to service connection for parathyroid adenoma was received after the September 2016 denial of that issue. 3. Resolving reasonable doubt in the Veteran's favor, his parathyroid adenoma is related to his active service. CONCLUSIONS OF LAW 1. The criteria for the readjudication of the claim of entitlement to service connection for parathyroid adenoma have been met. Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, § 5108, 131 Stat. 1105 (2017). 2. The criteria for service connection for parathyroid adenoma have been met. 38 U.S.C. §§ 1131, 5107 (West 2014); 38 C.F.R. §3.303(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1955 to July 1957. The Board notes that the rating decision on appeal was issued in April 2020. On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA) was signed into law. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran chose to participate in VA's Rapid Appeals Modernization Program (RAMP), electing the hearing process in October 2020. Based on the Veteran's choice, the Board will decide the appeal "based on the evidence of record at the time of the prior decision" and evidence submitted within 90 days subsequent to his December 2021 hearing. That is, the Veteran and his daughter testified before the undersigned in a Board videoconference hearing in December 2021; a copy of the transcript is of record. The Board notes that the discussion below reflects the new evidentiary standard under the AMA. Pub. L. No. 115-55, § 5108. 131 Stat. 1105, 1109. In light of the favorable determination contained herein with the issue decided below, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 (VCAA) would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Claim to Reopen The Veteran contends that he submitted evidence to reopen the claim for service connection for parathyroid adenoma that is new and relevant and warrants readjudication of the issue. VA will readjudicate a claim if new and relevant evidence is presented or secured. AMA, Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. AMA, Pub. L. No. 115-55, § 101(35), Stat. 1105, 1105. The Board finds that new and relevant evidence was received after the prior final rating decisions in the legacy system. The Veteran provided detailed account of why his claimed parathyroid adenoma was related to service, to include his exposure to radiation from Area 51 in his duties as a flight surgeon. This detailed account of why service connection is warranted was not already of record and may prove or disprove the nexus element of the claims for service connection. Readjudication of the claim is warranted. § 5104A, 131 Stat. 1105, 1106-07. Service Connection Legal Criteria and Analysis Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran contends, and testified before the undersigned, that his parathyroid adenoma is related to his duties in service as a flight surgeon. The Veteran testified and submitted correspondence explaining that he was assigned to Area 51, 30 miles downwind from the atomic test center in Nevada. He contends that his parathyroid adenoma is related to ionizing radiation exposure from Area 51. He stated that he was levied by the Strategic Air Command, and the Central Intelligence Agency, to Area 51 to become a flight surgeon for the U2 Reconnaissance Aircraft. The Veteran also testified as to his over 50 years of experience as a doctor specializing in internal medicine and cardiology, and he was qualified as a medical expert. At the outset, the Board notes that service treatment records appear unavailable for review. However, the Board is mindful that the absence of in-service evidence of a disability during service is not always fatal to a service connection claim. See, Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Further, the Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. Medical treatment records show diagnoses of parathyroid adenoma. Accordingly, the Board finds that Hickson element (1) is met. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran's DD Form 214 shows that he was a flight surgeon. The Veteran also submitted correspondence from T.B., stating that he confirmed the Veteran's presence at the Groom Lake Facility (official facility name for Area 51) during deployment from September 1956 to March 1957. Accordingly, Hickson element (2) is at least arguably met. With respect to Hickson element (3), the Veteran submitted a private opinion in February 2015 in which Dr. B.A., his surgeon, stated that his adenoma likely developed as a result to radiation exposure related to his employment, making it service connected. In this case, the Board finds that the Veteran's own opinion that his parathyroid adenoma is related to radiation exposure in service is competent and probative in providing a positive etiological opinion as he is qualified as a physician with over 50 years of experience. Moreover, Dr. B.A. provided a positive opinion that is supported by Veteran's observations and allegations in regards to the factual origin of the parathyroid adenoma. Although the examiner qualified his opinion in the terms "likely developed", there is no evidence that attributes the Veteran's parathyroid adenoma to any other cause. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (noting that medical reports "must be read as a whole"). Therefore, a nexus is established, and the criteria of Hickson element (3) are met. Based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that the parathyroid adenoma is related to active service, and service connection is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.