Citation Nr: 22014870 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 19-09 703 DATE: March 15, 2022 ORDER As new and material evidence (NME) has been received, the claim of entitlement to service connection for thyroid cancer status post total thyroidectomy (hereinafter stated as "thyroid cancer") is reopened. REMANDED Entitlement to an increased rating for asthma is remanded. Entitlement to service connection for thyroid cancer, including as secondary to exposure to Camp Lejeune contaminated water (CLCW) and/or radiation, is remanded. FINDING OF FACT NME was received to warrant re-opening the Veteran's claim of entitlement to service connection for thyroid cancer. CONCLUSION OF LAW The criteria to reopen the claim of entitlement to service connection for thyroid cancer have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1977 to April 1980 and from April 1989 to April 1997. He is a veteran of the Peacetime and Gulf War Eras. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2014 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021 the Veteran testified before the undersigned Veteran's Law Judge (VLJ) for a videoconference Board Hearing and a copy of the transcript is attached to his 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). 1. Whether NME has been received to reopen the claim for thyroid cancer The Veteran's claim for service connection for thyroid cancer was previously denied in a July 2010 rating decision. In August 2010 he submitted his disagreement and requested a de novo review by a Decision Review Officer (DRO). 38 C.F.R. § 3.2600. This review was conducted and in a November 2012 Statement of the Case (SOC), and the denial was continued. He was notified of this decision and of his appeal rights but did not perfect a timely appeal. He submitted a VA Form 9 (substantive appeal) in January 2013 and was informed in February 2013 that the substantive appeal was not timely and would be accepted as an informal claim to reopen. Therefore, the July 2010 rating decision became final. Claims decided in an unappealed rating decision may not be reopened absent the submission of NME warranting review of the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In order to be new and material, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, a requirement which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Numerous and various documents were submitted in support of the claim for thyroid conditions, including documents related to the existence of and extent of contaminants at Camp Lejeune and/or in the water there. Additionally, VA obtained an October 2016 special medical opinion on the etiology of the Veteran's thyroid condition. The Veteran provided additional and clarifying testimony during his Board Hearing. Finally, the RO found that NME was submitted, and the Board does not here disturb this determination. See SOC, June 2017. Accordingly, the Board finds that NME has been presented to warrant reopening the claim related to his thyroid condition. REASONS FOR REMAND 1. Entitlement to an increased rating for asthma is remanded. The Veteran claims that his asthma has worsened since his last VA examination in March 2017 and has not received pulmonary function testing (PFT) since 2009. During the April 2021 Board Hearing, the Veteran stated that he could not complete the last series of PFTs offered as his coughing was so extreme that he couldn't take the tests. He also stated that while he still has a persistent and consistent cough it is not quite as bad as it was but is stabilizing to a consistent cough daily and nightly before he goes to bed. See Hearing Transcript, pages 3 - 4. He also stated that he has not treating for his asthma because he felt that VA disregarded his condition and did not take it seriously. Id. at pages 4-5. While additional delay is unfortunate, an updated VA examination is needed as the March 2017 VA examination most likely no longer reflects the current level of severity of the Veteran's disability. Further, current PTFs are needed for the RO and the Board to properly determine the current level of severity of his asthma. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to service connection for thyroid cancer, including as secondary to exposure to CLCW and/or radiation is remanded. The Veteran contends that his thyroid cancer is due to his military service, including as due to exposure to CLCW and/or radiation. He asserts that the CLCW also contained radioactive contaminants and he has submitted numerous documents in support of that theory of entitlement. In support of his claim, the Veteran submitted letter opinions from his private medical providers, Dr. V.H., his primary care physician, and Dr. J.T., his oncologist. However, the record does not contain the actual treatment records from either of these providers, nor does it appear that these records were requested. Nor does there appear to be a complete set of records for his thyroidectomy surgery. In the October 12, 2016, VA Special Medical Opinion received, the examiner summarized the Veteran's medical history and identified the VA medical center (VAMC) in Orlando, Florida, as where he first sought treatment with VA, starting in September 2009. The VA examiner indicated that these records were reviewed in formulating the opinion. The evidence of record does contain records from VAMC Orlando, beginning February 2010, but not for the referenced initial period. Finally, the Veteran submitted two separate documents for the Authorization and Consent to Release Information, VA Form 21-4142 (Release Form), on October 5, 2009, in which it was stated that DVDs with documents therein were attached. Both written statements note that the DVD contained a list of names, physicians, hospitals, etc. and that if the DVD could not be found, they were to call either of the two telephone numbers listed. Both of the Release Forms were signed by both the Veteran and his wife. One of the two documents indicated there were documents specific to the Veteran's wife, but not the other. A document, identified as "STR-Medical" and marked as received by VA on December 23, 2014, contained a list of medical providers and facilities related to treatment for the Veteran's spouse. An earlier document, titled "Medical Injury Timeline" for both the Veteran's spouse and son, but not the Veteran, was received May 4, 2006. It does not appear that the list of medical providers and medical facilities for the Veteran, as indicated in the Release Form, was added to the file, or that records from these providers were received or even requested. VA has a duty to assist a Veteran develop his or her claim which requires VA to make reasonable efforts to assist in securing evidence necessary to substantiate the claim(s) for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes records in the custody of a Federal agency or department, as well as private medical records identified by the Veteran or through other evidence in the record. As the records discussed above are most likely relevant to the Veteran's claim on appeal, remand is necessary to obtain and associate them with his file for review. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Pursuant to 38 U.S.C. § 7112, this matter is to be afforded expeditious treatment. The matters are REMANDED for the following action: 1. Contact the Veteran and obtain a list of medical providers and treating facilities related to his claim for thyroid cancer, as well as appropriate releases to permit VA to obtain these documents from the providers identified. The RO is to provide copies of needed forms with instructions thereto. Any providers for which the Veteran submits the appropriate forms should be contacted to attempt to obtain records. The RO should also request all records from the VAMC in Orlando, Florida, for the entire period of his treatment which was stated to begin in or around September 2009. Document the efforts to complete these tasks. Attach all records received to his file. If the Veteran or any provider refuses or fails to respond, document that fact and attach the document to the file. 2. Obtain updated VA treatment records and attach these records to the file. (Continued on the next page) 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected asthma. As part of the VA examination the Veteran is to be provided pulmonary function testing (PFTs). If he is not able to perform the PFTs, the examiner must explain why and provide any comparable information that will help the RO and the Board to properly rate the disability. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.