Citation Nr: 21010022 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 13-18 200 DATE: February 23, 2021 ORDER Entitlement to temporary total evaluation (TTR) based on convalesce is denied. REMANDED Entitlement to service connection for breast cancer, claimed as secondary to ionizing radiation, is remanded. FINDING OF FACT The Veteran had surgery for a non-service-connected bunion of the right great toe. CONCLUSION OF LAW The criteria for temporary total disability rating for treatment of a service-connected disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.29, 4.30. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from December 1983 to June 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Columbia, South Carolina RO has assumed the role of Agency of Original Jurisdiction (AOJ). The Veteran provided testimony before the undersigned Veterans Law Judge at a hearing in June 2016. A transcript of that hearing is in the claims folder. Notably, this appeal was previously before the Board in November 2016, at which time, it was remanded for further evidentiary development. As it pertains to the issue of entitlement to a temporary total evaluation for a right foot bunionectomy, the Board finds that the AOJ substantially complied with the remand instructions, and appellate adjudication may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). Temporary Total Rating The Veteran avers that she is entitled to a temporary total evaluation for her February 2010 bunionectomy on the great toe of her right foot and subsequent convalescence. She reports that her service-connected little toe disability of her right foot caused her to put more weight on her great toe, which ultimately led to her bunion and bunionectomy. See Board Transcript, p. 3. Upon consideration of the evidence, the Board finds that the Veteran’s bunion and subsequent bunionectomy is unrelated to her service-connected great toe disability, and thus, a temporary total evaluation for the bunionectomy is not warranted. Under 38 C.F.R. § 4.30, a total rating will be assigned if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals or the necessity for house confinement or continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. Turning to the facts of the case, post-service medical treatment records indicate that the Veteran developed pain in her bilateral great toes in 2009, with more pain in the right foot than the left; she was subsequently diagnosed with bilateral bunions of the great toes. Her treating physicians did not provide an etiology for her bunions; however, they did advise that she wear loose fitting shoes. The Veteran subsequently underwent a bunionectomy on the right foot in February 2010. At the June 2011 VA foot examination, the examiner found the Veteran’s fifth toe joint remained stable. However, she demonstrated residual pain, stiffness, and limited range of motion in her right great big toe, which caused her to walk with an antalgic gait. See also, July 2012 VA foot examination. Most recently, in January 2020, the Veteran was afforded a VA examination to assess the nature of her right foot disabilities. Upon consideration of the evidence and examination of the Veteran, the examiner found that the Veteran’s bunionectomy was less likely than not related to her service-connected right little toe disability. In so finding, the examiner considered the Veteran’s contentions that her abnormal gait, which she attributed to service-connected right little toe disability, caused her to form a bunion on her right great toe. However, the examiner attributed the Veteran’s bunion and subsequent bunionectomy to other causes, to include poor fitting shoes and abnormal motion. Upon consideration of the above, the Board finds that a temporary total evaluation is not warranted in this case. While the record indicates that the Veteran had surgery on her right great toe due to a bunion, she is not service-connected for this disability. The medical opinion specified that the Veteran’s bunionectomy was not attributable to her service-connected right little toe disability. The Board places great probative weight on the opinion of the VA examiner as the opinion was rendered based on sound medical principles as applied to the specific facts of the Veteran’s case. In addition, there is no objective probative evidence to contradict the opinion. Indeed, medical treatment records do not link the Veteran’s bunionectomy to her service-connected right little toe disability. The Board finds that entitlement to a temporary total evaluation due to treatment for a service-connected disability requiring hospital treatment or observation is not warranted. The Board recognizes the Veteran’s argument that her bunionectomy required convalescence for a period of time; however, there is no probative evidence of record that establishes that her convalescence was for a service-connected disability. The Veteran is not shown to be competent to attribute the cause of her bunion formation to service-connected disability. The Veteran is free to file a claim for service connection for the right bunion if she chooses. The current claim is denied. REASONS FOR REMAND Service Connection for Breast Cancer A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). However, failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Veteran is seeking service connection for breast cancer, which she claims is secondary to her in-service exposure to ionizing radiation and/or toxic chemicals, solvent and paints. The Board remanded this claim, in part, for medical opinion as to whether the Veteran’s breast cancer was due to toxic materials in service noting that the Veteran’s service treatment records (STRs) documented health monitoring due to working around multiple toxic chemicals, solvents and paints. The AOJ has not complied with this remand directive. The Board also remanded this claim, in part, to further develop the radiation theory. The applicable regulatory provisions of 38 C.F.R. 3.311 state as follows: a) Determinations of exposure and dose — (1) Dose assessment. In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in § 3.307 or § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. When dose estimates provided pursuant to paragraph (a)(2) of this section are reported as a range of doses to which a veteran may have been exposed, exposure at the highest level of the dose range reported will be presumed. (2) Request for dose information. Where necessary pursuant to paragraph (a)(1) of this section, dose information will be requested as follows: (i) Atmospheric nuclear weapons test participation claims. In claims based upon participation in atmospheric nuclear testing, dose data will in all cases be requested from the appropriate office of the Department of Defense. (ii) Hiroshima and Nagasaki occupation claims. In all claims based on participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946, dose data will be requested from the Department of Defense. (iii) Other exposure claims. In all other claims involving radiation exposure, a request will be made for 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 medical 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. The Board found that a dose estimate was necessary pursuant to 38 C.F.R. § 3.311(a)(1), and that this “Other exposure claim” required a dose assessment provided by the Under Secretary of Health pursuant to 38 C.F.R. § 3.311(a)(2)(iii). In response, the AOJ obtained a well-reasoned dose assessment from the U.S. Army Public Health Center dated April 6, 2018. However, the AOJ bypassed obtaining a dose assessment by the Under Secretary of Health. Instead, the AOJ obtained an August 2020 advisory opinion from the Under Secretary for Benefits with the Veterans Benefits Administration (VBA). This opinion summarized the dose assessment procedures as follows: The second basis [for establishing service connection due to radiation exposure] is based on exposure to ionizing radiation with the subsequent development of a radiogenic disease under 38 C.F.R. § 3.311. 38 C.F.R. § 3.311 directs that the Under Secretary for Benefits shall request dose estimates, where necessary, for atmospheric and Hiroshima/Nagasaki claims from the Department of Defense, i.e., Defense Threat Reduction Agency (DTRA). It is further noted in other exposure claims, again “where necessary” [emphasis added by VBA], 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. Now, it is noted that when a reply is received from DTRA or a Dosimetry Center, VHA would be in agreement with such reports. That is, there would be no reasonable basis to come to a different conclusion. Thus, an additional dose estimate would not be necessary as it would be duplicative. However, in cases where no dose estimate is provided by DTRA or a Dosimetry Center it may be necessary to request a dose estimate from the Under Secretary for Health. The Board notes that 38 C.F.R. § 3.311(a)(1) establishes when a dose assessment is required and that 38 C.F.R. § 3.311(a)(2) establishes how that dose assessment will be obtained. Essentially, a dose assessment is deemed necessary under 38 C.F.R. § 3.311(a)(1) when the claimant has a radiogenic disease and it is contended the disease is a result of exposure to ionizing radiation in service. The language in 38 C.F.R. § 3.311(a)(2) essentially states that when the criteria for obtaining a dose assessment are met - “Where necessary pursuant to paragraph (a)(1) of this section”- VA “will” obtain a dose assessment in one of 3 specified ways depending on the type of claim involved. This case involves an “other exposure” claim which contains mandatory language that relevant 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). The Board has carefully reviewed VBA’s analysis of the evidentiary procedures. However, the Board is bound by applicable statutes, VA regulations, and precedent opinions of the General Counsel of the Department of Veterans Affairs, and is without authority to revise them. 38 C.F.R. § 19.5. The Board finds that the plain language of 38 C.F.R. 3.311(a)(2)(iii) directs that the dose assessment is to be provided by the Under Secretary for Health and no other entity. The “where necessary” language cited by VBA is only applicable to meeting the criteria for obtaining a dose assessment (“Where necessary pursuant to paragraph (a)(1) of this section”), and does not apply to the subsequent provisions as to the method of obtaining the dose assessment. The Board finds no regulatory language which allows the Board to accept a dose assessment from another entity as a substitute for the mandated assessment by the Under Secretary for Health. The Board also finds no information from the VHA itself that the Under Secretary for Health has delegated its authority within VA for the dose assessments to come from a different source. As a matter of interpretation, the provisions of 38 C.F.R. 3.311(a)(2)(iii) mandate that the Under Secretary for Health provide the dose estimate which has not been satisfied in this case. The matters are REMANDED for the following action: 1. Forward the Veteran’s personnel records, a copy of the June 2016 hearing transcript, the Veteran’s September 2016 statement describing her radiation related activities and the April 6, 2018 dose assessment from the U.S. Army Public Health Center to the Under Secretary for Health, who is responsible for preparation of a dose estimate of the Veteran’s exposure to ionizing radiation, to the extent feasible, based on available methodologies, pursuant to 38 C.F.R. § 3.311(a)(2)(iii). 2. Thereafter, forward the case to the VA Under Secretary for Benefits pursuant to 38 C.F.R. § 3.311(c). The Board emphasizes that the Under Secretary for Benefits is provided two possible regulatory recommendations: 1) the Under Secretary for Benefits may find that it is “as likely as not” that the veteran’s disease resulted from exposure to radiation in service, thereby recommending service connection, see 38 C.F.R. 3.311(c)(1)(i); OR 2) the Under Secretary for Benefits may find that there is “no reasonable possibility” that the veteran’s disease resulted from radiation exposure in service, see 38 C.F.R. 3.311(c)(1)(ii), and inform the AOJ of the decision in writing “setting forth the rationale for this conclusion.” Id. 3. Regardless of the ionizing radiation development directed above, schedule the Veteran for examination by an appropriate medical doctor for an opinion as to whether it is at least as likely as not that the Veteran’s breast cancer is due to exposure to toxic materials in service, including any cumulative effects of her exposure to ionizing radiation as analyzed in the April 2018 dose assessment from the U.S. Army Public Health Center. In so doing, the examiner should obtain a history from the Veteran of her chemical exposures and consider her treatment records which document health monitoring due to working around multiple toxic chemicals, solvents and paints. Additionally, the examiner should consider the September 18, 2009 medical report indicating that the Veteran’s genetic test for breast cancer mutation was negative. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.