Citation Nr: 21027831 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-21 389 DATE: May 6, 2021 REMANDED Entitlement to service connection for thyroid cancer residuals is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2002 to June 2002 and from February2005 to December 2006. In September 2020, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the Board's previous remand directives. Another remand for further development is required. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for thyroid cancer residuals is remanded. The Veteran asserts that thyroid cancer, to include residual hypothyroidism, is the result of service, to include environmental and ionizing radiation exposure in the Persian Gulf. Radiogenic diseases such as thyroid cancer, found five years or more after service in an ionizing radiation-exposed veteran may be service-connected if the VA Under Secretary for Benefits determines that it is related to ionizing radiation exposure while in service, or is otherwise linked medically to ionizing radiation exposure while in service. 38 C.F.R. § 3.311(b)(2). When it has been determined that: (1) a Veteran has been exposed to ionizing radiation; (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). Direct service connection may be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of relating causation to a condition or event during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The evidence shows that the Veteran was stationed in Iraq and Kuwait from November 2005 to November 2006. The Veteran submitted articles relating service in the Persian Gulf to thyroid cancer. A May 2019 VA examiner stated "although there [wa]s the possibility of exposure to depleted uranium and/or radiation while in service and thyroid cancers have been related to radiation exposure, the extent and duration of exposure, if any are unknown...there is no documentation in existing records of any accrued in service radiation dose such that it is not possible to conclude on an objective basis that there is a relationship between the thyroid condition and substance or radiation exposure during service." In September 2020, the claim was remanded for appropriate development under 38 C.F.R. § 3.311. In a December 2020 deferred rating decision, the AOJ noted that §3.311 (2) (iii) required that "[i]n 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." In January 2021, the AOJ requested verification of the Veteran's radiation exposure from the United States Army Dosimetry Center. In a February 2021 response, the United States Army Dosimetry Center stated that there were no records of exposure to ionizing radiation found for the Veteran. The claim was denied in a March 2020 supplemental statement of the case. The Board finds there has not been substantial compliance with the September 2020 remand directives. Specifically, the AOJ did not undertake all appropriate development as directed under 38 C.F.R. § 3.311. Although the United States Army Dosimetry Center provided negative results, the Veteran was diagnosed with thyroid cancer, a radiogenic disease, after service and asserts that thyroid cancer is due to exposure to ionizing radiation in service. Thus, the law requires that the Veteran's service medical records and other records which may contain information pertaining to the Veteran's radiation dose in service (such as written statements, service personnel records, submitted articles) be forwarded to the Under Secretary for Health for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311. Therefore, remand is necessary to ensure compliance with the September 2020 Board remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Forward all records concerning the Veteran's radiation exposure, including any relevant service records, statements or testimony regarding exposure, and any other information obtained, to the Under Secretary for Health for preparation of a radiation dose estimate, to the extent feasible based on the Veteran's active duty service. 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 the Veteran's alleged exposure, he should be contacted and asked to provide the information. 2. If the dose estimate is above zero, the claims file should be referred to the Under Secretary for Benefits for consideration. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any thyroid disability. The examiner should opine whether: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that any thyroid disability is related to service, to include as due to exposure to ionizing radiation, environmental toxins, or other chemicals and contaminants during service in the Persian Gulf. The examiner must consider (1) the Veteran's lay statements; (2) the articles provided by the Veteran; (3) the dose estimate provided by the Under Secretary of Health and (4) the May 2019 VA examiner's finding that "although there is the possibility of exposure to depleted uranium and/or radiation while in service and thyroid cancers have been related to radiation exposure the extent and duration of exposure if any are unknown and there is no documentation in existing records of any accrued in service radiation dose such that it is not possible to conclude on an objective basis that there is a relationship between the thyroid condition and substance or radiation exposure during service." (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any thyroid disability had its onset in service or manifested to a compensable degree within one year after separation from service. The examiner must discuss the Veteran's reports of in-service thyroid disability symptoms such as constipation; and the article noting constipation as a symptom of hypothyroidism. A clearly stated rationale with references to the record, diagnostic tests, and medical literature and research should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.