Citation Nr: 21031158 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-27 454A DATE: May 20, 2021 REMANDED Entitlement to service connection for leukemia is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for a thyroid disorder is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1954 to May 1956. In June 2011, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2013, the Board of Veterans' Appeal (Board) denied entitlement to service connection for the issues on appeal. The Veteran appealed that decision to the United States Court of Appeal for Veterans Claims (Court). In March 2014, the Court granted a joint motion for remand (JMR1) and vacated the May 2013 Board decision. In September 2014, the Board again denied the Veteran's claims of service connection for leukemia and cataracts and remanded the issues of entitlement to service connection for thyroid and hand tremor disabilities. The development provided evidence against these claims. The Veteran also appealed that decision to the Court. In June 2015, the Court granted another JMR (JMR2) vacating the September 2014 Board decision to the extent that it denied service connection for leukemia and cataracts and remanding these issues to the Board for action consistent with the terms of the JMR2. In December 2015, the Board remanded all four issues for further development. The development provided evidence against these claims. In March 2017 the Board dismissed the claim of service connection for hand tremors after the Veteran withdrew his appeal of the claim and remanded the remaining claims for additional development. In May 2019, the Board again remanded the appeal. The development provided more evidence against these claims. In March 2020, the Board again denied the Veteran's claims of service connection for leukemia, cataracts, and a thyroid disorder. The Veteran also appealed that decision to the Court. In October 2020, the Court granted another JMR (JMR3) vacating the March 2020 Board decision. Initially, while the record shows that it has remanded all or part of the above claims on three earlier occasions to undertake development required by the record and/or JMR1 and JMR2, it nonetheless finds that another remand is required to address the concerns raised by the JMR3. Entitlement to service connection for leukemia, cataracts, and a thyroid disorder are remanded Initially, the Board notes that the JMR3 vacated the March 2020 Board decision, in part, because it did not adequately address the specific arguments the appellant's representative raised in his March 2019 and January 2020 submissions, notwithstanding the development of the case cited above. The Board finds that a review of these submissions shows that they made, in substance, two claims: The May 2018 VA thyroid examiner's opinion was not adequate because it did not contain an adequate rationale and the March 2018 and July 2019 Memorandum from the Deputy Chief Consultant, Post Deployment Health Service (Deputy) dose estimates were not adequate. In this regard, both documents cited above provided evidence against this claim. As to the Veteran's representative's claim that the May 2018 VA thyroid examiner's opinion is not adequate, in light of the JMR3, which the Board cannot ignore as it is a finding of the Veteran's Court, it will once again Remand the appeal to obtain a new medical opinion to fully comply with the development requested by the Board in the March 2017 remand. See 38 U.S.C. § 5103A(d); Stegall v. West, 11 Vet. App. 268 (1998) (holding that, where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); . While the JMR3 compels us to again Remand the appeal to obtain a new VA medical opinion, this has become a highly multifarious case and in the interest of clarity the Board wishes to note the following: Specifically, the Board wishes all parties to this appeal to understand the fact that the March 2020 Board decision neither cited to, nor relied upon, the May 2018 VA examination when adjudicating and denying the claim of service connection for a thyroid disorder under the presumptions found at 38C.F.R. §3.309(a) and 38C.F.R. §3.309(d) as well as under 38C.F.R. §3.303(a), except to cite it as showing the Veteran had a current disability. The Board was able to take this action because the record contains Veterans Health Administration (VHA) opinions dated in December 2011, March 2018, and July 2019 which were adequate to fully address this claim for service connection. Therefore, the Board had no reason to address the Veteran's representative's claim that the May 2018 VA thyroid examination was not adequate. Next, the Board will address the Veteran's representative's claim that the dose estimates provided by the Deputy in March 2018 and July 2019 were not adequate. In this regard, the Board finds that it need not obtain a third dose estimate while the appeal is in Remand status. The Board has reached this conclusion because, and as specifically discussed in the March 2020 Board decision (see March 2020 Board decision, pages 7 to 9), the Veteran's representative in the March 2019 and January 2020 submissions argued, in substance, that the record shows the Veteran had 27.32 rem's of ionizing radiation exposure while on active duty from the tubes under the counter in the van he worked-in as a radar operator because they were constantly being serviced while the radar was being operated and supported this claim with medical opinions from Dr. Warren Alexander and Dr. Bradly D. Keck as well as medical reports included one entitled Emission of Parasitic X-Rays from Military Radar Transmitters and Exposure of Personnel: Towards a Retrospective Assessment. Moreover, and as specifically discussed in the March 2020 Board decision, not only did the Board conceded that the Veteran had 27.32 rem's of ionizing radiation exposure while on active, but the May 2019 request for the second dose estimate specifically directed the Deputy to assume that the Veteran had 27.32 rem's of ionizing radiation exposure while on active duty. The second dose estimate request also directed the Deputy to specifically consider and discuss the appellant's service personnel records and personal hearing testimony regarding his radiation exposure as a radar operator, the medical opinions from Dr. Alexander and Dr. Keck, and the medical reports provided by the appellant included the one entitled Emission of Parasitic X-Rays from Military Radar Transmitters and Exposure of Personnel: Towards a Retrospective Assessment. Tellingly, the Deputy in the second dose estimate dated in July 2019, after a detailed discussion of all of the above evidence opined, in substance, that it was unlikely that the Veteran's 27.32 rem's of ionizing radiation exposure while a radar operator on active duty in the 1950's caused his current leukemia, cataracts, and thyroid disabilities notwithstanding Dr. Alexander and Dr. Keck's opinions and the medical reports provided by the appellant. Therefore, notwithstanding the March 2019 and January 2020 submissions and the concerns raised by the JMR3, the Board finds that it need not obtain a third dose estimate while the appeal is in Remand status because the second dose provided by the Deputy in July 2019 already substantially addressed all the concerns raised by the Veteran's representative in the March 2019 and January 2020 submissions. Lastly, the Board finds that while the appeal is in Remand status the agency of original jurisdiction should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran's representative should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. In order to comply with the JMRs and Board Remands, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the claim of service connection for a thyroid disorder. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a thyroid disorder was caused by the Veteran's military service to include a conceded dose estimate of 27.32 rem's of ionizing radiation exposure from the tubes under the counter in the van he worked-in as a radar operator in the 1950's because they were being serviced while the radar was being operated. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a thyroid disorder manifested in the first post-service year. In providing answers to the above questions, the examiner should consider the Veteran's competent claims regarding observable symptomatology. In providing answers to the above questions, the examiner should consider and discuss the significance, if any, of the medical opinions from Dr. Alexander and Dr. Keck as well as the reports filed by the Veteran's attorney included the one entitled Emission of Parasitic X-Rays from Military Radar Transmitters and Exposure of Personnel: Towards a Retrospective Assessment. In providing answers to the above questions, the examiner should be advised that the Veteran may establish service connection on a direct bases under 38 C.F.R. §3.303(a) for a thyroid disorder even when the criteria for presumptive service connection under 38 C.F.R. §3.309(a) or 38C.F.R. §3.309(d) have not been met. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In order to comply with the JMR3, in answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to any inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). This case has been to the Veterans Court on several occasions and the RO is asked to insure that the medical opinion request is wholly complete. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.