Citation Nr: 21029003 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-12 346 DATE: May 12, 2021 ORDER Service connection for residuals of a peripheral nerve tumor (schwannoma) between the lung and ribs as due to ionizing radiation (previously claimed as residuals of a lung tumor) is granted. Service connection for a thyroid disorder as due to ionizing radiation is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected thyroid disorder, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II, is remanded. Entitlement to service connection for hypogonadism, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II, is remanded. Entitlement to service connection for atrial fibrillation, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II, is remanded. Entitlement to service connection for arterial disorder, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II, is remanded. Entitlement to service connection for osteoporosis, to include as due to hypogonadism, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to hypogonadism and/or diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to ionizing radiation as a participant in Operation Hardtack I. 2. Schwannoma is a peripheral nerve tumor contemplated under tumors of the brain and central nervous system, thus a radiogenic disease for VA purposes. 3. The Veteran's current radiogenic disease, diagnosed as schwannoma between the lung and ribs, manifested more than five years after his in-service ionizing radiation exposure. 4. Non-malignant thyroid nodules is a radiogenic disease for VA purposes. 5. The Veteran's current thyroid disorder, diagnosed as thyroid nodules, manifested more than five years after his in-service ionizing radiation exposure. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for residuals of a peripheral nerve tumor (schwannoma) between the lung and ribs as due to ionizing radiation have been satisfied. 38 U.S.C. §§ 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.311 (2020). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a thyroid disorder as due to ionizing radiation have been satisfied. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1957 to January 1959. In August 2016, the Board denied the issue of entitlement to an initial compensable rating for calcified pleural and diaphragmatic plaques (initially claimed as lung scarring) and remanded the remaining issues on appeal for additional evidentiary development. In September 2018 the remaining issues on appeal were denied by the Board. The Veteran appealed the September 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the appellant and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated May 21, 2019 granted the motion and remanded the case to the Board. In December 2019, the Board remanded the case pursuant to the JMR and the case has been returned to the Board for appellate review. There was substantial compliance with the December 2019 remand directives for the issues on appeal discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, a memorandum from Director of Post 9/11 Era Environmental Health Program was obtained in September 2020, an advisory opinion from Executive Director of Compensation Service was obtained in September 2020, and the case was readjudicated in a September 2020 supplemental statement of the case (SSOC). 1. Entitlement to service connection for residuals of a peripheral nerve tumor (schwannoma) between the lung and ribs as due to ionizing radiation 2. Entitlement to service connection for a thyroid disorder In June 2009, the Veteran requested service connection for schwannoma tumor affecting the lung and ribs and for thyroid nodules, both as due to in-service exposure to ionizing radiation. Schwannoma is defined as "a neoplasm originating from Schwann cells of neurons; the two types are neurilemomas and neurofibromas." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1703 (31st ed. 2007). Neurofibroma is defined as "a usually benign tumor of peripheral nerves caused by abnormal proliferation of Schwann cells; called also fibroneuroma. Cf. neurilemoma." Id. at 1284. Review of the evidentiary record includes a February 2016 private medical opinion in which J. F. and S. M. characterized the Veteran's treatment for "reoccurrence of peripheral nerve tumor (schwannoma)" as such. Additionally, the parties agreed in the JMR that a peripheral nerve tumor is contemplated under tumors of the brain and central nervous system. In light of such evidence, the Board finds that schwannoma is a peripheral nerve tumor which is contemplated under tumors of the brain and central nervous system, and such tumors are listed as a "radiogenic disease" under 38 C.F.R. § 3.311(b)(2)(xx). As a result, the Board finds that schwannoma is a radiogenic disease for VA purposes. Additionally, non-malignant thyroid nodular disease is listed as a "radiogenic disease" under 38 C.F.R. § 3.311(b)(2)(xvii). During the course of the appeal, development and adjudication for these claims on appeal as due to exposure to ionizing radiation was completed. See 38 C.F.R. § 3.311(b)(1)(iii), (c). VA secured a dose estimate of the Veteran's in-service radiation exposure in March 2018. Pursuant to August 2016 remand directives, a memorandum from Deputy Chief Consultant of Post Deployment Health Service was obtained and associated with the claims file in May 2018 and an advisory opinion from Executive Director of Compensation Service was obtained and associated with the claims file in June 2018. As explained in the May 2019 JMR, the parties agreed that this memorandum and advisory opinion are inadequate because based on an inaccurate factual history, specifically citing the Veteran's incorrect birth year, race, and mother's medical history. Most recently, pursuant to the December 2019 Board remand directives, a memorandum from Director of Post 9/11 Era Environmental Health Program and an advisory opinion from Executive Director of Compensation Service were both obtained and associated with the claims file in September 2020. The Board also finds this memorandum and advisory opinion are inadequate because based on an inaccurate factual history, specifically citing that schwannoma has to be malignant for the presumption of ionizing radiation to apply. Nevertheless, review of the evidentiary record shows the Veteran was exposed to ionizing radiation as a participant in Operation Hardtack I, and there is no probative evidence to indicate otherwise. See 38 C.F.R. § 3.311(b)(1)(i). The Veteran subsequently developed a radiogenic disease, diagnosed as schwannoma between the lung and ribs, noted as early as January 2005 in VA treatment records. See 38 C.F.R. § 3.311(b)(1)(ii), (b)(2)(xx). He also subsequently developed a radiogenic disease, diagnosed as non-malignant thyroid nodules, noted as early as September 2005 in VA treatment records. See 38 C.F.R. § 3.311(b)(1)(ii), (b)(2)(xvii). The Veteran's diagnoses of schwannoma and thyroid nodules manifested more than five years after his in-service ionizing radiation exposure. See 38 C.F.R. § 3.311(b)(1)(iii), (b)(5)(iv). Additionally, in October 2020 the Veteran submitted a private medical opinion by Dr. A. E. O. who noted that he was the attending neurosurgeon for the Veteran's excision of schwannoma in February 2006 and explained why "thus tumor was more than likely service related d[ue] to exposure to ionizing radiation." The Board finds this opinion was based on an accurate factual history and there is no probative contrary medical opinion of record. For the reasons and bases discussed above and after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for residuals of a peripheral nerve tumor (schwannoma) between the lung and ribs and for a thyroid disorder as due to ionizing radiation. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.311(f). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected thyroid disorder The Veteran has a current diagnosis of diabetes mellitus, type II, as noted in VA treatment records dated during the appeal period. In the December 2019 Board remand there was a request for additional evidentiary development for diabetes mellitus, type II, on a secondary basis to thyroid disorder. As decided in this case, service connection is warranted for thyroid disorder hence additional development is needed to adjudicate this claim on a secondary basis. See 38 C.F.R. § 3.310. A VA medical opinion is needed. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II 3. Entitlement to service connection for hypogonadism, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II 4. Entitlement to service connection for atrial fibrillation, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II The Veteran has current diagnoses of hypertension, hypogonadism, and atrial fibrillation, as noted in VA treatment records dated during the appeal period. In the December 2019 Board remand there was a request for additional evidentiary development for these claims on a secondary basis to thyroid disorder and diabetes mellitus, type II. As decided above, service connection is warranted for thyroid disorder, hence additional development is needed to adjudicate this claim on a secondary basis. See 38 C.F.R. § 3.310. VA medical opinions are needed. 5. Entitlement to service connection for arterial disorder, to include as secondary to service-connected thyroid disorder and/or diabetes mellitus, type II Review of VA treatment records dated during the appeal period shows the following: CT thorax and chest findings in January 2013 of moderate calcification noted in the coronary arteries; chest x-ray findings in January 2013 of dilated central pulmonary arteries possibly due to pulmonary arterial hypertension; CT thorax findings in April 2013 of mild calcification in the coronary arteries; an assessment in December 2019 of right lower leg wound due to edema with possible arterial stiffness contributing to wounds; and CT head scan findings in March 2020 of partially calcified likely right vertebral artery aneurysm. In the December 2019 Board remand there was a request for additional evidentiary development for this claim on a secondary basis to thyroid disorder and diabetes mellitus, type II. As decided above, service connection is warranted for thyroid disorder, hence additional development is needed to clarify the existence and etiology of a current arterial disorder on a secondary basis. See 38 C.F.R. § 3.310 (2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 6. Entitlement to service connection for osteoporosis, to include as due to hypogonadism 7. Entitlement to service connection for erectile dysfunction, to include as due to hypogonadism and/or diabetes mellitus, type II The Veteran has current diagnoses of osteoporosis and erectile dysfunction, as noted in VA treatment records dated during the appeal period. The Veteran reported in a correspondence submitted with the June 2009 VA Form 21-526 that his hypogonadism resulted in osteoporosis and erectile dysfunction. In the December 2019 Board remand, there was also a request for additional evidentiary development for erectile dysfunction on a secondary basis to diabetes mellitus, type II. Furthermore, a June 2015 VA treatment record documents that the Veteran's diabetes mellitus, type II, is complicated by diabetes. While the Board remands the issues of entitlement to service connection for hypogonadism and diabetes mellitus, type II for additional evidentiary development, as discussed above, that decision may impact these claims for osteoporosis and erectile dysfunction. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claim for diabetes mellitus, type II. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II, was proximately due to or the result of his service-connected thyroid disorder. (b.) Whether it is at least as likely as not that the Veteran's diabetes mellitus, type II, was aggravated beyond its natural progression by his service-connected thyroid disorder. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claim for hypertension. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. First, the examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was proximately due to or the result of his service-connected thyroid disorder. (b.) Whether it is at least as likely as not that the Veteran's hypertension was aggravated beyond its natural progression by his service-connected thyroid disorder. Second, if and only if a positive opinion has been provided for diabetes mellitus, type II, the examiner must also opine as to the following: (c.) Whether it is at least as likely as not that the Veteran's hypertension was proximately due to or the result of his diabetes mellitus, type II. (d.) Whether it is at least as likely as not that the Veteran's hypertension was aggravated beyond its natural progression by his diabetes mellitus, type II. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's claim for hypogonadism. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. First, the examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypogonadism was proximately due to or the result of his service-connected thyroid disorder. (b.) Whether it is at least as likely as not that the Veteran's hypogonadism was aggravated beyond its natural progression by his service-connected thyroid disorder. Second, if and only if a positive opinion has been provided for diabetes mellitus, type II, the examiner must also opine as to the following: (c.) Whether it is at least as likely as not that the Veteran's hypogonadism was proximately due to or the result of his diabetes mellitus, type II. (d.) Whether it is at least as likely as not that the Veteran's hypogonadism was aggravated beyond its natural progression by his diabetes mellitus, type II. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Provide the Veteran's claims file to an appropriate clinician to provide opinions regarding the Veteran's claim for atrial fibrillation. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. First, the examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's atrial fibrillation was proximately due to or the result of his service-connected thyroid disorder. (b.) Whether it is at least as likely as not that the Veteran's atrial fibrillation was aggravated beyond its natural progression by his service-connected thyroid disorder. Second, if and only if a positive opinion has been provided for diabetes mellitus, type II, the examiner must also opine as to the following: (c.) Whether it is at least as likely as not that the Veteran's atrial fibrillation was proximately due to or the result of his diabetes mellitus, type II. (d.) Whether it is at least as likely as not that the Veteran's atrial fibrillation was aggravated beyond its natural progression by his diabetes mellitus, type II. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician for his claim for an arterial disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner's attention to the following after review of VA treatment records: CT thorax and chest findings in January 2013 of moderate calcification noted in the coronary arteries Chest x-ray findings in January 2013 of dilated central pulmonary arteries possibly due to pulmonary arterial hypertension CT thorax findings in April 2013 of mild calcification in the coronary arteries Assessment in December 2019 of right lower leg wound due to edema with possible arterial stiffness contributing to wounds CT head scan findings in March 2020 of partially calcified likely right vertebral artery aneurysm First, the examiner must opine as to the following: (a.) Clarify whether the Veteran has a current diagnosis of an arterial disorder at any time since 2009 (even if since resolved). (b.) If so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current diagnosis of an arterial disorder was proximately due to or the result of his service-connected thyroid disorder. (c.) Whether it is at least as likely as not that the Veteran's current diagnosis of an arterial disorder was aggravated beyond its natural progression by his service-connected thyroid disorder. Second, if and only if a positive opinion has been provided for diabetes mellitus, type II, the examiner must also opine as to the following: (d.) Whether it is at least as likely as not that the Veteran's current diagnosis of an arterial disorder was proximately due to or the result of his diabetes mellitus, type II. (e.) Whether it is at least as likely as not that the Veteran's current diagnosis of an arterial disorder was aggravated beyond its natural progression by his diabetes mellitus, type II. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the agency of original jurisdiction (AOJ) must implement corrective procedures. 7. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.