Citation Nr: 21007419 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-00 632 DATE: February 9, 2021 ISSUE Entitlement to service connection for esophageal cancer, to include as due to exposure to ionizing radiation, and/or due to non-ionizing radiation, and/or due to exposure to asbestos. REMANDED Entitlement to service connection for esophageal cancer, to include as due to exposure to ionizing radiation, and/or due to non-ionizing radiation, and/or due to exposure to asbestos is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1955 to September 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board recognizes that the Veteran’s service treatment records and service personnel records are unavailable. The RO submitted a request to the National Personnel Records Center (NPRC) in January 2013 requesting all service treatment and service personnel records. The NPRC responded that the records were destroyed by a fire. All available personnel documents from the Veteran’s reconstructed record had been sent and uploaded to the Veteran’s claims file. In an August 2013 letter, the Veteran was informed that his service records were unavailable and was asked to submit an NA Form 13055. VA received responses regarding the Veteran’s radiation exposure risk from the Department of the Air Force in August 2013 and the Defense Threat Reduction Agency in March 2014. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a January 2018 Board video conference hearing. A transcript of this hearing has been associated with the claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). In June 2018, and more recently in August 2020, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Despite the August 2020 remand, the Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for esophageal cancer, to include as due to exposure to ionizing radiation, and/or due to non-ionizing radiation, and/or due to exposure to asbestos is remanded. The Veteran claims that his esophageal cancer is due to his active duty service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303 (a). As noted in the Board’s prior remand from August 2020, the Veteran has offered three theories that he believes explain his esophageal cancer. First, the Veteran believes he was exposed to ionizing radiation. The Veteran submitted a Radiation Risk Activity Information Sheet in February 2013, that indicate he was stationed at Nuclear/atomic testing sites in New Mexico, which placed him approximately 300 miles from the center of ground zero, and that he was outside of the buildings at the time of the explosions. Second, the Veteran believes that he was exposed to non-ionizing radiation. The Veteran wrote in a statement from November 2012 that his military occupational specialty (MOS) was a Radar Tech Training instructor, and that “as an operator and an instructor, I was subjected to 92,000 plus mega cycles from the equipment [causing] high amounts of radiation from the external radar systems.” See further, correspondence from August 2014. Third, the Veteran believes that he was exposed to asbestos. He submitted internet research, received by VA in February 2015, that indicates asbestos remediation efforts have taken place at Lowry Air Force Base in Denver, where the Veteran was stationed. This argument was furthered by the Veteran’s Representative in correspondence from February 2015. And as also noted in the Board’s prior remand, the Veteran was given the opportunity to testify in January 2018. He testified as to being around nuclear test sites and ionizing radiation, that his MOS placing him around radar technical equipment and non-ionizing radiation, and that he was exposed to asbestos, which has since been removed from Lowry Air Force base where he was stationed. During the hearing, the Veteran’s Representative argued that the RO had not adequately explored every theory of entitlement that the Veteran is claiming. The Veteran is competent to testify and to report that which he experiences, such as his time while in service, the details of his MOS, and the symptoms of his esophageal cancer. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Chronologically, the Veteran’s claim was remanded in June 2018 for a VA examination and an associated etiological opinion for his diagnosed esophageal cancer. The Veteran was then given that VA exam in June 2019, however as noted in the August 2020 Board remand, the June 2019 exam was inadequate. In brief, the rationale relied on the fact that the Veteran did not have esophageal cancer while in service, which is not fatal to his claim; the opinion offered a combined rationale which only briefly discussed non-ionizing radiation and asbestos exposure – ionizing radiation was not mentioned; and finally, the opinion did not address the Veteran’s lay statements, hist testimony, the Veteran’s submitted medical research articles, nor a July 2014 private medical opinion from Dr. A.E.V., as well as a December 2014 opinion by Dr. G.W.B., an assistant professor of physicians and astronomy. As a result, the Veteran’s claim was remanded for an additional VA addendum opinion from a suitable professional, and that professional was specifically to address all of the relevant evidence listed above. Three separate opinions were requested from that professional, addressing each of the Veteran’s three separate theories for entitlement to service connection. See 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159; see further Schafrath v. Derwinski, 1 Vet. App. 589 (1995). That VA addendum opinion was obtained in October 2020. As directed by the Board’s prior remand, three separate opinions were given. The examiner indicated that a review of the records took place. The examiner provided an overall opinion as to whether the Veteran’s diagnosed esophageal cancer was at least as likely as not due to his active duty service. The examiner wrote that it was not, and provided the following rationale: Review of the medical record shows no evidence of the diagnosis, treatment or symptoms suggestive of any esophageal condition while on active duty or within one year of separation from military service. The second opinion directed the examiner to consider whether or not the Veteran’s esophageal cancer was at least as likely as not due to non-ionizing radiation exposure. The examiner wrote that this was less likely than not the case, and provided the following rationale: Review of studies associated with atomic testing/radiation exposure and associated illness shows no evidence of a link between atomic testing or radar exposure and esophageal cancer. An association is noted concerning thyroid cancer, however no association with esophageal cancer has been reported. Esophageal cancer has been associated with therapeutic ionizing radiation for breast cancer and other thoracic malignancies, but not remote possible exposure to atomic testing. The examiner then provided a brief discussion of exposure to “I-131 as a br-product of nuclear reactions … as shown conclusively by the 1986 nuclear accident in Chernobyl,” but this discussion was specifically related to “excess cases of thyroid cancer.” The examiner provided a third opinion addressing whether the Veteran’s esophageal cancer was at least as likely as not due to his exposure to asbestos. The examiner opined that it was not, and provided the following rationale; Risk of developing esophageal cancer is greatly increased due to smoking …. Esophageal cancer has not been associated with exposure to asbestos. That opinion also discussed studies of those most diagnosed in terms of age and race, but asbestos is not specifically discussed other than the singular mention in the final sentence. Finally, the examiner provided a third opinion, which purported to address the question of whether the Veteran’s esophageal cancer was at least as likely as not due to ionizing radiation. They marked that it was not, however the opinion provided was the exact same as that which was provided for the non-ionizing radiation exposure question. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the addendum opinion provided in October 2020 is inadequate. To begin, no opinion addresses the Veteran’s lay statements, nor testimony. The medical research articles that the Veteran provided, which were specifically cited in the prior remand directives were also not addressed. The private medical opinion and the opinion of the university professor are also not addressed, as was specifically requested. Furthermore, the opinions provided for ionizing radiation versus non-ionizing radiation are the same, despite the Veteran offering different theories for his purported exposure and that potential impact to his esophageal cancer. Finally, the opinion addressing asbestos exposure does not mention asbestos exposure, aside from a cursory mention at the end of the opinion. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Board again requests that the requisite VA addendum opinions be provided. The Board is again requesting three separate addendum opinions from an appropriate VA oncologist, and each of the factors listed in the below remand directives must be addressed. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, completion of step one above, obtain addendum opinions by an oncologist to determine the nature and etiology of the Veteran’s esophageal cancer. An examination should be scheduled if deemed necessary. The Veteran’s claims file, to include a copy of this remand must be made available to the examiner. Following a review of the Veteran’s claims file, the examiner must opine as to the following: (a.) Whether the Veteran’s esophageal cancer is at least as likely as not related to exposure to ionizing radiation. The opinion is asked to discuss that in a February 2013 Radiation Risk Activity Worksheet, the Veteran reported being 300 miles from ground zero of an atomic test in New Mexico in either January or February 1955, but that he was not issued a film badge. The examiner is reminded that the previous examination did not mention these factors, nor the Veteran’s lay statements and his testimony, and it was deemed inadequate as a result. (b.) If not, whether the Veteran’s esophageal cancer is at least as likely as not related to exposure to non-ionizing radiation. The opinion is asked to discuss the Veteran’s DD-214 Form which indicates his military occupational specialty (MOS) was weapons control systems mechanic, as well as the numerous articles provided by the Veteran detailing the risk of exposure to radar. The opinion is also asked to discuss the July 2014 positive private medical opinion from Dr. A. E. V., as well as the December 2014 positive opinion provided by Dr. G. W. B., an assistant professor of physics and astronomy. The examiner must address these private medical opinions. Again, the examiner is reminded that the previous examination did not mention these factors, nor the Veteran’s lay statements and his testimony, and it was deemed inadequate as a result. The opinion and rationale provided must be separate and distinct as it relates to ionizing versus non-ionizing radiation. (c.) If not, whether the Veteran’s esophageal cancer is at least as likely as not related to exposure to asbestos. The opinion is asked to discuss the February 2015 statement by the Veteran’s representative regarding the Veteran’s exposure to asbestos. The opinion is also asked to discuss the relationship, if any, between the Veteran’s admitted over-six decades of tobacco smoking, and his esophageal cancer. Again, the examiner must address the lay statements from the Veteran regarding his esophageal cancer, as well as the testimony he has provided. The examiner is reminded that the previous examination report was deemed inadequate, as these factors were not mentioned. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. (Continued on next page.) 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his Representative a Supplemental Statement of the Case (SSOC) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, Associate 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.