Citation Nr: 21006077 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 08-10 725 DATE: February 3, 2021 REMANDED Entitlement to service connection for Hashimoto's thyroiditis, claimed as due to exposure to ionizing radiation, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army Reserves from February 1987 to October 1987, and again from November 1990 to September 1991. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2012, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board. A copy of the transcript has been associated with the claims file. In November 2020 correspondence, the Veteran was given the opportunity to request another hearing and was notified that if she did not provide a response in 30 days, it would be assumed that she did not want another hearing. The Veteran did not respond to the letter, and the Board will therefore proceed. This matter was previously before the Board in January 2013, at which time it was remanded for further development. The remand instructed that all available records regarding the Veteran’s asserted exposure to radiation should obtained. Then, the record must be forwarded to the appropriate service department to obtain a dose estimate. If the estimate was significantly different from the previously reported 000.298 rem, an opinion was to be obtained from the Under Secretary for Benefits (Director of Compensation Service). The matter was subsequently denied in an April 2015 decision Board decision. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In August 2016, based on a Joint Motion for Remand (JMR), the Court vacated the denial and remanded the issue based on failure to ensure compliance with the terms of the earlier remand as well failure to fulfill the VA’s duty to assist. Specifically, the parties to the JMR noted that although a request was sent to the U.S. Army Medical Command for an occupational radiation dose estimate, the request did not mention the Veteran’s alleged exposure to radiation from an explosion at Camp Doha in 1991. The parties acknowledged that a request was sent to the United States Department of Energy (DOE) requesting a dose estimate for the Veteran which included the contention that she was exposed to depleted uranium due to an explosion at Camp Doha in 1991, however, because information concerning potential exposure to radiation was not supplied to the service department, further remand was warranted. See Stegall v. West, 11 Vet. App. 268, 270 (1998). The parties further agreed that the VA failed to ensure compliance with the duty to assist. During the October 2012 Board hearing, the Veteran reported that her claims file contained a letter that she had received following deployment indicating that she was exposed to depleted uranium at Camp Doha. Although the letter was not found following review of the file, the VA failed to notify the Veteran that the letter was not on file and no attempts were made to obtain the letter. In October 2016, the Board remanded the claim for further development. Specifically, the Board instructed that the AOJ should attempt to obtain a copy of the letter referenced in the October 2012 hearing. The AOJ was then instructed to forward the record, including any service records, lay statements and testimony regarding radiation exposure to include the fact that she was never issued a radiation monitoring badge and that she performed x-rays using a portable unit without protection to the appropriate service department or Under Secretary of Health for preparation of a dose estimate. Notably, The October 2016 remand took judicial notice of a report entitled “Depleted Uranium Exposures to Personnel Following the Camp Doha Fire,” and instructed that this report be reviewed as well. Then, the Board instructed that the claim be referred to the Under Secretary for Benefits for consideration under 38 C.F.R. § 3.311(c) to make a determination as to whether it is at least as likely as not that the Veteran’s Hashimoto’s thyroiditis resulted from exposure to radiation in service. Instructions stated that in considering the Veteran’s probable dose, the Veteran’s lay statements concerning her exposure to radiation during her deployment, the fact that she was never issued a radiation monitoring badge, and the fact that she performed x-rays using a portable unit without protection must be considered. In October 2016, correspondence was sent to the Veteran specifically requesting the letter referenced at the October 2012 hearing. In January 2019, a request was sent to the U.S. Army Dosimetry Center, and a dose estimate was provided in February 2019. In May 2019, a request was sent to the Compensation Services Central Office seeking an opinion, which was provided in February 2020. The matter is again before the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the October 2016 remand directives. As such, another remand is warranted. As previously noted, the October 2016 remand instructed that the agency preparing the dose estimate be provided specific information, including service records, lay statements, testimony regarding radiation exposure, as well as the report entitled “Depleted Uranium Exposures to Personnel Following the Camp Doha Fire.” The January 2019 request included reference to the Veteran’s military occupational specialty (MOS) as an x-ray specialist, her presence in the x-ray box at the time of the Doha explosion, the Veteran’s statement that she was never issued an x-ray monitoring badge, as well as reference to an attached VA Form 21-4138 that included “full details of incident.” The VA Form 21-4138 is not included so it is unclear what was included therein. Enclosures provided include the Veteran’s military personnel records as well as the October 2016 remand. However, no reference was made to the report, “Depleted Uranium Exposures to Personnel Following the Camp Doha Fire,” which the Board specifically instructed must be made available to the party preparing the dose estimate. The February 2019 total dose estimate was that of 000.298 rem, mirroring the results of the Annual/Quarterly History of Exposure to Ionizing Radiation, which noted that in October 1991 the Veteran’s total body dose was 000.298 rem. In the May 2019 Memorandum of Referral to Compensation Services for Ionizing Radiation, instructions included review of the October 2016 remand. It was noted in the referral that the Veteran was alleging exposure to radiation due to her MOS as an x-ray technician, but no reference to alleged exposure due to the Camp Doha explosion was noted. In the February 2020 advisory opinion that followed, the Executive Director of Compensation Service determined that an additional advisory medical opinion from the Under Secretary of Health was not necessary, as the Veteran’s occupational exposure does not meet or exceed an annual dose estimate of 5 rem in one year, or 10 rem in a lifetime. She noted the Veteran’s periods of service as well as the records from the Army Dosimetry Center noting a total effective dose equivalent to 000.298 rem. She stated that the Veteran was 20-24 years old when exposed to ionizing radiation, diagnosed with thyroiditis in 2006, and referred to private medical note that the Veteran’s family history is “positive for heart disease and thyroid disease.” Accordingly, the director concluded that after reviewing all available evidence and considering all relevant facts, there was no reasonable possibility that the Veteran’s thyroiditis is a result of exposure to ionizing radiation during service. However, in providing this opinion, no consideration was afforded to the statements including the Veteran’s exposure to radiation during her deployment, the fact that she was never issued a radiation monitoring badge, and the fact that she performed x-rays using a portable unit without protection, despite the remand instructions specific instruction that such be considered. As such, an additional remand is warranted. The matters are REMANDED for the following action: 1. In accordance with 38 C.F.R. § 3.311(a)(2)(iii), the AOJ should forward the report entitled “Depleted Uranium Exposures to Personnel Following the Camp Doha Fire” prepared for and edited by the U.S. Army Center for Health Promotion and Preventive Medicine, to the appropriate service department or to the Under Secretary for Health, and request that a determination be made as to whether the information within would alter the previously prepared dose estimate. (If a specific estimate cannot be made, a range of possible doses should be provided.) If more information from the Veteran is required regarding specifics of her alleged exposure, she should be contacted and asked to provide the information. 2. Then, refer the claim to the Under Secretary of Benefits for consideration under 38 C.F.R. § 3.311(c). The Under Secretary for Benefits should be asked to make a determination as to whether it is at least as likely as not that the Veteran’s Hashimoto’s thyroiditis resulted from exposure to radiation in service. Such a determination may require an advisory opinion from the Under Secretary of Health and should take into consideration such factors as set forth in 38 C.F.R. § 3.311(e), to include the probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement ot the methodologies employed in its estimation. 38 C.F.R. § 3.311(e)(1). Specifically, in considering the Veteran’s probable dose, the Veteran’s lay statements concerning her exposure to radiation during her deployment, the fact that she was never issued a radiation monitoring badge, and the fact that she performed x-rays using a portable unit without protection must be considered. 3. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.