Veteranclaims’s Blog

April 20, 2012

Single Judge Application, Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010); VA’s Duty to Obtain Relevant Records

Excerpt from decision below:
“C. VA’s Duty To Obtain Relevant Records
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.
The duty to assist includes the duty to make “reasonable efforts to obtain relevant records,” as long as the claimant “adequately identifies” those records to the Secretary and authorizes the Secretary
9

to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96, 102 (2005).
In the case of claims for disability compensation, the Secretary’s
assistance shall include obtaining”[t]he claimant’s service medical records and, if the claimant has furnished the Secretary information
sufficient to locate such records, other relevant records pertaining to the claimant’s active military, naval, or air service that are held or maintained bya governmental entity.”38 U.S.C. § 5103A(c)(1).
If the records are maintained by a Federal department or agency, “efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.” 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2) (2011). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must notify the claimant of that fact. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e).
The Board’s determination that VA has satisfied the duty to assist is
reviewed under the “clearly erroneous” standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). As always, the Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate informed review in this Court. See 38 U.S.C. § 7104(a), (d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
In the decision here on appeal, the Board found that VA satisfied its duty to assist because
VA “made reasonable efforts to assist the [v]eteran in obtaining evidence necessary to substantiate
his claim,” and the “[v]eteran has not identified any other evidence which has not been obtained.”
R. at 8. However, in reaching this conclusion, the Board did not discuss the Department of the Air
Force memoranda indicating that “in some cases, standard practice was to maintain records” of
occupational exposure in individual health, unit, or installation records” (R. at 265, 338), and that
“in early cases . . . the DD Form 1141 . . . [was] maintained in the
military medical record or by the
local unit, and [was] not forwarded for inclusion in the central
repository” (R. at 361). This failure
is significant given the Board’s reliance on (1) the absence of a DD 1141 in the record and its
“presum[ption]” that one was not prepared for the appellant; and (2) its
selective reliance on a
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portion of the same November 2004 memorandum stating that the “registry was the single repository
for occupational radiation exposure monitoring for all Air Force personnel.” R. at 12.
The Department of the Air Force memoranda (R. at 265, 338) adequately
identified an additional repository for records that VA had identified as necessary to substantiate the appellant’s claim and cautioned that the “inability . . . to locate a record should not be considered as conclusive evidence that an occupational exposure” to radiation and nonionizing radiation did not occur. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (identifying “relevant records” for purposes of VA’s duty to assist as “those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim”). Yet, the record on appeal does not indicate that VA conducted a search for unit or installation records, nor did the Board make any finding that there was “no reasonable possibility” that the records could help substantiate the appellant’s claim for benefits or that “such records do not exist or that further efforts to obtain those records would be futile.” See 38 U.S.C. §§ 5103A(a)(2),(b)(3); see also 38 C.F.R. § 3.159(c)(2). The Board’s failure to explain why a further search was not necessary – particularly in light of its “presum[ption]” of no ionizing radiation exposure (R. at 12) and its failure to adjudicate this theory of entitlement – renders its statement of reasons or bases inadequate. See 38 U.S.C.
§ 7104(d); see also Allday and Gilbert, both supra.
Nonetheless, the Court is required to “take due account of the rule of prejudicial error.” 38 U.S.C. § 7261(b)(2); see Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009) (noting that the statute requiring this Court to “take due account of prejudicial error [] requires the Veterans Court to apply the same kind of ‘harmless error’ rule that courts ordinarily apply in civil cases”). Regarding the theory of entitlement adjudicated in the Board’s decision – entitlement based on exposure to nonionizing radiation – the Secretary persuasively argues that any error is not prejudicial because the Board relied on the medical opinions of record, which noted that the appellant denied any acute symptoms of high level RFR exposure and, even assuming low-level exposure, the evidence did not
establish a relationship between the appellant’s claimed disabilities and exposure to low levels of RFR. Secretary’s Br. at 20; see R. at 138-46, 184, 249-54. In his reply brief, the appellant argues that “the level of exposure, high or otherwise, cannot be determined due to the [A]gency’s inadequate
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development.” Reply Br. at 15. However, his response misses the mark. In other words, the appellant fails to demonstrate how remand to obtain records confirming the amount of exposure would assist in substantiating the appellant’s claim when the scientific and medical evidence of record fails to identify a relationship between low-level exposure and the appellant’s disabilities, and the appellant has denied any acute symptoms of high-level exposure. As a result, the Court concludes that the appellant has not carried his burden of demonstrating prejudicial error.
However, because the Board did not make any similar adverse finding with regard to the relationship, if any, between the appellant’s current disabilities and exposure to ionizing radiation,
the Court cannot conclude that the error is not prejudicial with regard to this theory of entitlement.
Therefore, because the Court has determined that the Board erred when it failed to adjudicate a theory of entitlement based on exposure to ionizing radiation, on remand the Board must determine
whether the Secretary’s duty to assist requires VA to search for the
pertinent records with regard to this theory, and if no additional search is warranted, the Board must provide an adequate statement
of reasons or bases for its determination.
===========

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3273
LEANDER WORKMAN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Leander Workman, through counsel appeals a
July 30,
2010, Board of Veterans’ Appeals (Board or BVA) decision that denied VA
disabilitycompensation
for macular degeneration as a result of nonionizing radiation exposure and
bronchial mucosa
associated lymphoma tissue (B-MALT) status post left lung lobectomy as a
result of nonionizing
radiation exposure. Record of Proceedings (R.) at 3-18. This appeal is
timely, and the Court has
jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a). Both
parties filed briefs, and the appellant filed a replybrief. Single-judge
disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following
reasons, the Court will affirm
in part and vacate in part the July 30, 2010, Board decision, and remand
the vacated matters for
further proceedings consistent with this decision.
I. BACKGROUND
The appellant served honorably on active duty in the U.S. Air Force from
January 1954 to
December 1957 and from July 1958 to June 1962. R. at 1234-35. He was
diagnosed with possible
small cell carcinoma in January 1995. R. at 975, 1178. After the appellant
underwent a left lung
upper lobectomy, his diagnosis was changed to bronchial mucosa associated
lymphoid tissue

lymphoma. R. at 988. A February 1995 oncology report indicates that he
had a complete resection
of the tumor and that there was no evidence of metastasis. Id. A July 1999
optometry consult note
indicates a diagnosis of age-related macular degeneration, refractive
error, and possible glaucoma.
R. at 1204-05.
In June 1999, the appellant submitted a claim for disability compensation
for “lung cancer
residuals”and “macular degeneration,” whichherelatedto radiation exposure
in service. R. at 1230-
33. An undated telephone “report of contact” indicates that VA personnel
contacted the appellant
to obtain specifics regarding his in-service radiation exposure and that
he reported being “exposed
to microwaves due to his MOS [military occupational specialty] for 8 y[
ears]. He was stationed in
compounds where there were radar dishes.” R. at 1229.
An October 2000 Department of the Air Force memorandum indicates that the
Air Force
requested information from the U.S. Air Force Radiofrequency Radiation (
RFR) Overexposure
Repository, which resulted in “no information confirming any exposure to
RFR.” R. at 362. The
memorandumalsoindicatesthat”[e]pidemiological studies
providenoclearevidenceofdetrimental
effects in humans from chronic exposure to RFR and it has not been linked
to cancer.” Id. However,
the memorandum does indicate that “[o]cular damage was found in
individuals who were exposed
to RFR ‘well in excess’ of the limits, and at levels and duration to cause
thermal heating of the eye.”
Id.
In a September 2001, rating decision, the Louisville, Kentucky, regional
office (RO) denied
disability compensation for macular degeneration and B-MALT, to include as
a result of exposure
to ionizing radiation. R. at 837-42. The appellant filed a Notice of
Disagreement (R. at 822-32) and
submittedstatementsdescribinghisexposuretohigh-poweredAircraftControl &
Warning(AC&W)
radar radiation via “FPS-3 Early Warning Search Radar and FPS-6 Height
Finding Radar” and
“similar more powerful” radarequipment (R. at 751-52). He reported the
following assignments and
exposure during service: (1) From June 1954 to December 1957, he was
stationed at the 784th
AC&W Radar Squadron, where hewasexposedto earlywarningsearch and height
finding radar that
swept past his operations building three times every minute; (2) from July
1958 to February 1959,
he was stationed at Shaw Air Force Base, where he used similar equipment
and his operations’
building was adjacent to radar dishes that were 15 feet above ground and
swept radiation past the
2

building three times every minute; (3) from February 1959 to February
1962, he was stationed in
Spain where he was exposed to newer, more powerful radar equipment that
was only 15 to 20 feet
above his work area and also swept radiation past the operations room
three times everyminute; and
(4) from February1962 to June 1962, he was stationed at Sweetwater, Texas,
where he was exposed
to radar dishes that were located a few hundred feet from the operations’
building. Id. The appellant
also asserted that he recalled “attending various training sessions when
radiological and biological
threats were explained and radiation badges were shown and explained to us.
My recollection is we
were told radiation badges would onlybe issued to us in the event of
possible hostile nuclear action.”
R. at 751.
In a May 2002 Statement of the Case (SOC), the RO continued to deny
disability
compensation for macular degeneration and B-MALT, because the evidence
failed to show
“exposure to ionizing radiation during service” or that either condition
was caused or aggravated by
military service. R. at 793-808 (emphasis added). In June 2003, the
appellant submitted a letter
from Dr. Charles Lahr who opined, based on literature provided to him by
the appellant and the
appellant’s duties in the military, that the appellant’s diagnosed cancer
and macular degeneration are
more likely than not residuals of his RFR exposure. R. at 736.
In a December 2003 decision, the Board remanded the claims to the RO for
additional
development, which it characterized as claims for B-MALT and macular
degeneration, both
secondary to RFR or microwave radiation. R. at 579-87. In describing the
appellant’s claim, the
Board stated that the appellant “does not contend and the evidence does
not show that he was
exposed to ionizing radiation” and that he “can[]not be considered a
radiation-exposed veteran due
to participation in as radiation risk activity.” R. at 582. Nonetheless,
based on the appellant’s
statements relating that he worked around or near radar equipment, the
Board decided that another
attempt should be made to ascertain whether he was exposed to RFR during
service, and if so, his
estimated exposure. R. at 582-85.
In response to the RO’s request for a “record of exposure of ionizing
radiation,” a November
2004 Department of the Air Force memorandum indicates that its queryof the
U.S. Air Force Master
RadiationExposureRegistry(MRER)found”noexternalorinternalexposuredata”
ontheappellant.
3

R. at 361 (emphasis added). The memorandum also indicates that although
the MRER is the “single
repository for occupational radiation exposure monitoring for all Air
Force personnel,” and their
records date to 1947, “there appear to have been cases where early records,
especially the DD Form
1141, were maintained in the military medical record or by the local unit,
and were not forwarded
for inclusion in the central repository.” Id.
In February 2006, the Department of the Air Force provided an additional
response, which
indicates that it was unable to reconstruct a precise dose estimate for
the appellant based on his
duties as a radar technician because there was no “exposure data for the
particular radar system” he
worked with, “nor the detailed information on his duties that would be
required for such an
estimate.” R. at 359. The memorandum noted that “[i]t is recognized that
occupational exposures
thatcouldresult from radarsystems includenon-ionizingradiation intheformof[
RFR]andionizing
radiation in the form of x-rays from RFR generating sources, such as
klystroms.” Id. (emphasis
added). With respect to RFR, the memorandum noted that the consensus of
scientific advisory
bodies is that there are no long-term effects (including cancer) from low-
level exposures. Id. With
respect to ionizing radiation exposure, the memorandum noted that “[t]he
potential for ionizing
radiation exposure when working near some radar systems does exist, but we
are unable to judge
what specificexposures mayhave resulted. It is recognized that high
exposures to ionizing radiation
may increase long-term risks of cancer.” Id.
AseparateFebruary2006memorandumfromtheAirForceInstituteforOccupationalHeal
(AFIOH) indicates that a search of the MRER and “all records currently
maintained by this
organization” was negative. R. at 338. Although the MRER contains ”
occupational radiation
exposure records generated from 1947 to the present,” the memorandum
indicates that
[i]n some cases, standard practice was to maintain records of occupational
radiation
exposure in individual health, unit, or installation records. We no have
no way of
determining if records of those types exist. Therefore, absence of a
record in the
MRER should not be considered as conclusive evidence that an occupational
exposure to radiation did not occur.
Id.
4

In June 2006, the AFIOH provided another negative response for records of ”
occupational
microwave and [RFR] exposures.” R. at 265. However, this memorandum also
indicates that “[i]n
some cases, standard practice was to maintain records of occupational
microwave and [RFR]
exposures in individual health, unit or installation records” and that the
AFIOH has “no way of
determining if records of those type exist. Therefore, the inability for
us to locate a record should
not beconsideredas conclusive evidence that an occupational exposureto non-
ionizing radiation did
not occur.” Id. (emphasis added).
The appellant was provided a compensation and pension examination in
October 2006. R.
at 249-54. The examiner opined that the appellant’s B-MALT was not caused
by or a result of RFR
exposure. R. at 254. The examiner indicated that he reviewed the
literature provided by the
appellant, which showed “little relationship” to low-level RFR exposure
and was primarily related
to “overdose high exposure situations.” Id. With respect to high-level
exposure, the examiner stated
that “extrapolation from high dose or over[]exposure to RFR to low dose
RFR is not possible” and
that “[w]hen asked by the BVA judge if the veteran had ever had any of the
symptoms of overdose
in his literature he answered no to all questions asked.” Id. The examiner
concluded, based on the
current information available, that there is no “conclusive evidence of a
relationship between RFR
and cancer” and noted that the appellant denied any symptoms of overdose
mentioned in the
literature. R. at 252, 254.
In June 2008, the Board requested an independent medical examination (IME)
to determine
whether it is “at least as likely as not that the claimed lung changes and
macular degeneration are due
to [RFR] or microwave radiation exposure during the veteran’s period of
active service.” R. at 189-
91. In January 2009, the examiner opined that it was unlikely that the
appellant’s development of
primarypulmonarylymphomaresultedfromhis exposureto nonionizing radiation.
R. at 184. Based
on his review of the scientific literature, the examiner indicated that
the appellant’s lymphoma
accounts for less than 1% of all lymphomas and that there have been no
recorded instances in the
literature of its specific association with nonionizing radiation. Id.
Because the January 2009 examiner failed to opine regarding the
appellant’s macular
degeneration, the Board requested another IME in August 2009. R. at 159-62.
In October 2009, the
5

examiner opined that the appellant’s macular degeneration was less likely
than not related to his
military service, including RFR. R. at 138-46. The examiner reasoned that “[
t]here is no
substantiated proof of cumulative effects from long-term low-level
exposure to [RFR] in the peer-
reviewed literature” and that the “onlyproven effects . . . are thermal.”
R. at 137. He also noted that
high doses produce acute symptoms and signs and that the appellant
testified that he had “none of
the symptoms of acute high-level radiofrequency/microwave exposure.” R. at
137-38.
In the decision here on appeal, the Board denied disability compensation
for macular
degeneration and B-MALT as a result of exposure to nonionizing radiation.
R. at 3-18. Although
the appellant’s service records confirmed his duties as a radar operator,
the Board found that the
record contained no evidence of ionizing radiation exposure or the claimed
high levels or even low
levels of RFR exposure. R. at 5, 10, 12, 17. Additionally, in determining
that the preponderance
of the evidence was against the appellant’s claim, the Board found Dr.
Lahr’s favorable opinion not
probative and assigned greater probative weight to the findings made by
the VA examiner and the
January and October 2009 IMEs. R. at 13-18.
II. ANALYSIS
A. The Parties’ Arguments
On appeal, the appellant argues that the Board erred when it found no
evidence of in-service
exposureto ionizingornonionizingradiation
andrejectedtheappellant’slayevidenceasnot credible
regarding his proximity to radar equipment. Appellant’s Brief (Br.) at 12-
16. The appellant also
argues that VA failed to fulfill its duty to assist, the Board ignored
evidence indicating that radar
systems emit both ionizing and nonionizing radiation, and the Board
provided an inadequate
statement of reasons or bases to deny his claims. Id. at 16-19, 22-24. He
argues that the Board erred
when it failed to require development of his claim based on exposure to
ionizing as well as
nonionizing radiation, and argues that remand is required for an
additional search of local unit and
installation records,
whichtheAirForcememorandaindicatedmightcontainrecordsofoccupational
radiation exposure. Id. at 5, 16-19; see R. at 265, 361 (November 2004 and
June 2006 memoranda).
6

The appellant also asserts that he submitted sufficient information
relevant to calculating a
dose estimate, but that VA failed to obtain an estimate. Id. at 7-11. In
addition, because the record
was inadequately developed, the appellant asserts, the IMEs are inadequate
because they are based
on the presumption of low exposure or no exposure to nonionizing radiation
and fail to opine on any
matters pertinent to exposure to ionizing radiation related to x-rays from
RFR-generating sources.
Id. at 12, 19-22; see R. at 359 (February 2006 memorandum). Finally, the
appellant argues that the
Board applied the wrong legal standard when it denied his claim. Id at 24.
The Secretaryargues that the Board correctlydetermined that the
appellant’s claims were not
predicated on any alleged exposure to ionizing radiation and that the
record nevertheless did not
contain evidence of any such exposure. Secretary’s Br. at 8-9. The
Secretary also argues that the
Board plausibly determined that the evidence did not confirm exposure to
high or low doses of
nonionizing radiation, and that the appellant fails to identify any
evidence that contradicts or
otherwise questions the plausibility of its interpretation of the evidence.
Id. at 13-14. To the extent
that the appellant challenges the Board’s dismissal of lay evidence as not
credible, the Secretary
contends that the Board merely found the evidence not credible as to nexus,
and not as to his
proximity to radar equipment in service. Id. at 16-17. Finally, the
Secretaryargues that VA satisfied
its duty to assist, the medical nexus opinions are adequate, and the Board
did not apply an incorrect
legal standard. Id. at 18-22.
In his reply brief, the appellant argues that he had no duty to
specifically plead an ionizing
radiation theory and that the Board’s finding no evidence of ionizing
radiation exposure is both
erroneous and demonstrative that the issue was raised bythe record.
ReplyBr. at 1-7. The appellant
also refutes the Secretary’s contentions that the duty to assist did not
require VA to conduct an
additional search for records. Reply Br. at 10-15.
B. Reasonably Raised Theory Based on Exposure to Ionizing Radiation
The Board has a duty to address all issues reasonably raised either by the
appellant or by the
contents of the record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (
2008), aff’d sub nom.
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As noted above, the
parties disagree whether
the appellant or the record reasonably raised entitlement to disability
compensation benefits based
7

on exposure to ionizing radiation. Contrary to the Secretary’s suggestion,
the Court finds that this
is not a situation where Board is being asked to “assume the impossible
task of inventing and
rejecting every conceivable argument in order to produce a valid decision.”
Secretary’s Br. at 8
(quoting Robinson, 21 Vet.App. at 553).
Initially, the Court observes that the appellant’s application did not
specify the type of
radiation he was exposed to during service and the RO initially
adjudicated his claim based on
exposure to ionizing radiation. R. at 793-808 (May 2002 SOC); 837-42 (
September 2001 rating
decision); 1230-33 (application for benefits). In addition, the February
2006 Department of the Air
Force memorandum recognized that “occupational exposures that could result
from radar systems
include non-ionizing radiation in the form of [RFR] and ionizing radiation
in the form of x-rays
from RFR generating sources, such as klystroms.” R. at 359 (emphasis added
); see Schafrath v.
Derwinski, 1 Vet.App. 589, 592-93 (1991) (Board is required to consider
all evidence of record and
to discuss in its decision all “potentially applicable” provisions of law
and regulation.).
The Secretary argues at great length that the appellant’s submissions and
arguments confirm
that he was asserting entitlement to benefits based on exposure only to
nonionizing radiation, and
that the appellant’s reliance on the February 2006 memorandum is misplaced
because it fails to
demonstrate that the appellant was personally exposed to such radiation.
Secretary’s Br. at 10-11.
The Court is not persuaded by the Secretary’s arguments because, as noted,
the RO initially
adjudicated entitlement to benefits based on exposure to ionizing
radiation, and the Secretary does
not identifyanyaffirmative evidence indicating that the appellant
abandoned this ionizing-exposure
theory of entitlement. See Roebuck v. Nicholson, 20 Vet.App. 307, 313 (
2006) (recognizing that a
claimant can raise “multiple means of establishing entitlement to a
benefit for a disability, [even] if
the theories all pertain to the same benefit for the same disability”).
The Secretary also argues that any error in failing to adjudicate this
theory is harmless
because the record is devoid of anyevidence of actual exposure to ionizing
radiation. Id. at 13. This
argument also lacks merit because the Board “presumed” that no DD Form
1141, Record of
Occupational Exposure to Ionizing Radiation, was prepared for the
appellant based the Department
of the Air Force’s assertion that it found no exposure data regarding the
appellant. R. at 12.
8

However, as discussed in more detail below, the Board failed to discuss
evidence indicating that
there have been instances where the DD Forms 1141 were not forwarded to
the central repository,
but were maintained in the military medical record or by the local unit (
see R. at 361 (November
2004 memorandum)), and there is no indication that VA searched the
military unit records.
Based on the foregoing, the Court concludes that the Board’s
characterization of the issue on
appeal as a claim for benefits “due to non-ionizing radiation” and its
finding that “this claim is not
based on ionizing radiation exposure” is clearlyerroneous. See Gilbert v.
Derwinski, 1 Vet.App. 49,
52 (1990) (“‘A finding is “clearly erroneous” when although there is
evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has
been committed.'” (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948))); see also
Robinson v. Peake, supra. In addition, because there is no indication that
VA ordered a search for
unit records to determine whether a DD Form 1141 was maintained for the
appellant outside of the
central repository, the Board’s determination that there is no evidence of
exposure to ionizing
radiation appears to have been based on an inadequate record. Therefore,
the Court will remand this
issue for further development and adjudication consistent with this
decision.
In pursuing his case on remand, the appellant is free to submit additional
evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
“[a] remand is meant to entail a critical examination of the justification
for the decision.” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for “expeditious
treatment” of claims
remanded by the Court).
C. VA’s Duty To Obtain Relevant Records
The Secretary has a duty to assist claimants in developing their claims.
38 U.S.C. § 5103A.
The duty to assist includes the duty to make “reasonable efforts to obtain
relevant records,” as long
as the claimant “adequately identifies” those records to the Secretary and
authorizes the Secretary
9

to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson,
19 Vet.App. 96, 102 (2005).
In the case of claims for disability compensation, the Secretary’s
assistance shall include obtaining
“[t]he claimant’s servicemedical records and, if the claimant has
furnishedtheSecretaryinformation
sufficient to locate such records, other relevant records pertaining to
the claimant’s active military,
naval, or air service that are held or maintained bya governmental entity.”
38 U.S.C. § 5103A(c)(1).
If the records aremaintained bya Federal department or agency, “efforts to
obtain those records shall
continue until the records are obtained unless it is reasonably certain
that such records do not exist
or that further efforts to obtain those records would be futile.” 38 U.S.C.
§ 5103A(b)(3); 38 C.F.R.
§ 3.159(c)(2) (2011). If the Secretary is unable to obtain those records
after making reasonable
efforts to do so, the Secretary must notify the claimant of that fact. See
38 U.S.C. § 5103A(b)(2);
38 C.F.R. § 3.159(e).
The Board’s determination that VA has satisfied the duty to assist is
reviewed under the
“clearly erroneous” standard of review. Hyatt v. Nicholson, 21 Vet.App.
390, 395 (2007). As
always, the Board is required to include in its decision a written
statement of the reasons or bases
for its findings and conclusions on all material issues of fact and law
presented on the record; that
statement must be adequate to enable an appellant to understand the
precise basis for the Board’s
decision, as well as to facilitate informed review in this Court. See 38 U.
S.C. § 7104(a), (d)(1);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
In the decision here on appeal, the Board found that VA satisfied its duty
to assist because
VA “made reasonable efforts to assist the [v]eteran in obtaining evidence
necessary to substantiate
his claim,” and the “[v]eteran has not identified any other evidence which
has not been obtained.”
R. at 8. However, in reaching this conclusion, the Board did not discuss
the Department of the Air
Force memoranda indicating that “in some cases, standard practice was to
maintain records” of
occupational exposure in individual health, unit, or installation records” (
R. at 265, 338), and that
“in early cases . . . the DD Form 1141 . . . [was] maintained in the
military medical record or by the
local unit, and [was] not forwarded for inclusion in the central
repository” (R. at 361). This failure
is significant given the Board’s reliance on (1) the absence of a DD 1141
in the record and its
“presum[ption]” that one was not prepared for the appellant; and (2) its
selective reliance on a
10

portion of the same November 2004 memorandumstating that the “registrywas
the single repository
for occupational radiation exposure monitoring for all Air Force personnel
.” R. at 12.
The Department of the Air Force memoranda (R. at 265, 338) adequately
identified an
additional repository for records that VA had identified as necessary to
substantiate the appellant’s
claim and cautioned that the “inability . . . to locate a record should
not be considered as conclusive
evidence that an occupational exposure” to radiation and nonionizing
radiation did not occur. See
Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (identifying ”
relevant records” for purposes
of VA’s duty to assist as “those records that relate to the Previous DocumentinjuryNext Document for
which the claimant is seeking
benefits and have a reasonable possibility of helping to substantiate the
veteran’s claim”). Yet, the
record on appeal does not indicate that VA conducted a search for unit or
installation records, nor
did the Board make any finding that there was “noreasonable possibility”
that the records could help
substantiate the appellant’s claim for benefits or that “such records do
not exist or that further efforts
to obtain those records would be futile.” See 38 U.S.C. §§ 5103A(a)(2),(
b)(3); see also 38 C.F.R.
§ 3.159(c)(2). The Board’s failure to explain why a further search was
not necessary – particularly
in light of its “presum[ption]” of no ionizing radiation exposure (R. at
12) and its failureto adjudicate
this theory of entitlement – renders its statement of reasons or bases
inadequate. See 38 U.S.C.
§ 7104(d); see also Allday and Gilbert, both supra.
Nonetheless, the Court is required to “take due account of the rule of
prejudicial error.”
38 U.S.C. § 7261(b)(2); see Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (
2009) (noting that the statute
requiring this Court to “take due account of prejudicial error [] requires
the Veterans Court to apply
the same kind of ‘harmless error’ rule that courts ordinarily apply in
civil cases”). Regarding the
theory of entitlement adjudicated in the Board’s decision – entitlement
based on exposure to
nonionizing radiation – the Secretarypersuasivelyargues that anyerror is
not prejudicial because the
Board relied on the medical opinions of record, which noted that the
appellant denied any acute
symptoms of high level RFR exposure and, even assuming low-level exposure,
the evidence did not
establish a relationship between the appellant’s claimed disabilities and
exposure to low levels of
RFR. Secretary’s Br. at 20; see R. at 138-46, 184, 249-54. In his
replybrief, the appellant argues that
“the level of exposure, high or otherwise, cannot be determined due to the [
A]gency’s inadequate
11

development.” Reply Br. at 15. However, his response misses the mark. In
other words, the
appellant fails to demonstrate how remand to obtain records confirming the
amount of exposure
would assist in substantiating the appellant’s claim when the scientific
and medical evidence of
record fails to identifya relationship between low-level exposure and the
appellant’s disabilities, and
the appellant has denied any acute symptoms of high-level exposure. As a
result, the Court
concludes that the appellant has not carried his burden of demonstrating
prejudicial error.
However, because the Board did not make any similar adverse finding with
regard to the
relationship, if any, between the appellant’s current disabilities and
exposure to ionizing radiation,
the Court cannot conclude that the error is not prejudicial with regard to
this theory of entitlement.
Therefore, because the Court has determined that the Board erred when it
failed to adjudicate a
theory of entitlement based on exposure to ionizing radiation, on remand
the Board must determine
whether the Secretary’s duty to assist requires VA to search for the
pertinent records with regard to
this theory, and if no additional search is warranted, the Board must
provide an adequate statement
of reasons or bases for its determination.
D. Adequacy of IMEs and the Board’s Assessment of Evidence
The appellant argues that VA obtained and the Board relied on inadequate
IMEs because the
examiners (1) did not have sufficient information regarding the
appellant’s actual exposure, and
assuming those records are not available, VA failed to obtain data
sufficient to make a dose estimate
calculation, and (2) the examiners failed to offer an opinion based on his
exposure to ionizing
radiation. Appellant’s Br. at 19-22. He also argues that the Board
inappropriately afforded less
weight to Dr. Lahr’s medical opinion because it was based on the
appellant’s “unsusbtantiated claim
of high level exposure to RFR” when the IMEs were based on an
unsubstantiated claim of no
exposure or low exposure. Id. at 20. The Secretary asserts that the
appellant’s argument lacks merit
because it is predicated on the condition that the Secretary violated his
duty to assist with respect to
obtaining records relevant to radiation exposure. Secretary’s Br. at 21.
The Court agrees.
With regard to the appellant’s claim based on exposure to nonionizing
radiation, the
appellant’s arguments fail for the same reason the Court found no
prejudice concerning VA’s failure
to search for unit or installation records. The lack of actual exposure
data is not fatal to the adequacy
12

of the examiners’ opinions because they found no association between low-
level exposure to RFR
and the appellant’s claimed disabilities, and although the literature
indicated a relationship to high-
level exposure, the appellant denied any symptoms of overdose or acute
high level RFR exposure.
See R. at 139 (October 2009 IME noting that the appellant “testified that
he had none of the
symptoms of acute high-level radiofrequency/microwave exposure” and
concluding that “it is less
likely than not that [his] military service, including radiofrequency
radiation, is [r]elated to his
macular degeneration”); R. at 184 (finding no instances of “specific
association” in the literature
between the appellant’s lymphoma and nonionizing radiation); see also R.
at 252, 254 (October2006
VA examiner’s finding that there is “no conclusive evidence of a
relationship between RFR and
cancer” and noting that the appellant denied any symptoms of overdose
mentioned in the literature).
In light of these findings, the Court cannot say that the Board’s
assignment of greater
probative worth to the October 2006 VA examination and the January and
October 2009 IMEs was
clearly erroneous. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (
2005) (it is the Board’s
duty, as factfinder, to determine the credibility and weight to be given
to the evidence); Owens v.
Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible
for assessing the
credibility and weight of evidence and that the Court may overturn the
Board’s decision only if it is
clearly erroneous). Nor has the appellant demonstrated error in the
Board’s finding that Dr. Lahr’s
favorable opinion was not probative because his opinion was based on the
appellant’s
unsubstantiated claim of high-level exposure and did not contain any
rationale for his conclusions.
See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) (“Part of the
Board’s consideration of
how much weight to assign [a medical opinion] is the foundation upon which
the medical opinion
is based.”); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (
medical opinion should
“support its conclusion with an analysis that the Board can consider and
weigh against contrary
opinions”).
Because the appellant’s claim based on a theory of exposure to ionizing
radiation is being
remanded for adjudication, the Court will not address the appellant’s
argument that the IMEs are
inadequate because the examiners failed to address whether his
disabilities are related to exposure
to ionizing radiation. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (
per curiam order) (holding
13

that “if the proper remedy is a remand, there is no need to analyze and
discuss all the other claimed
errors that would result in a remedy no broader than a remand”); see also
Best v. Principi,
15 Vet.App. 18, 19 (2001) (per curiam order) (holding that the Court
generally decides cases on the
narrowest possible grounds and therefore is not required to rule upon
other allegations of error in
effecting a remand).
E. The Appellant’s Remaining Arguments
The appellant also argues that the Board erred when it found his lay
evidence not “credible”
and failed to explain whyhis statements that he worked in proximity to
radar systems for eight years
and his descriptions of those radar systems can be viewedas untruthful or
inconsistent with the facts.
Appellant’s Br. at 13-14. The Secretary argues that the Board did not find
the lay evidence of his
proximity to radar equipment not credible. Secretary’s Br. at 17. Even
assuming that the Board
erred, the Secretary argues that any error was necessarily harmless. Id.
The Court agrees.
Undoubtedly, the appellant’s proximity and duration of exposure to the
radar equipment is
relevant to whether he was exposed to RFR-generating sources. See Hyatt,
21 Vet.App. at 396
(defining “relevant evidence” as “evidence having any tendency to make the
existence of any fact
that is of consequence to the determination of the action more probable or
less probable than it would
be without the evidence”). However, as discussed above, the Board denied
the appellant’s claim
because the evidence of record shows no relationship between the
appellant’s disabilities and low
levels of RFR exposure, and the appellant denied symptoms of acute high-
level RFR or microwave
exposure. R. at 14-16. As a result, the Court finds that the appellant has
not demonstrated that any
error was prejudicial. See Sanders, supra.
Finally, the appellant argues that the Board applied the wrong legal
standard when it required
a preponderance of the evidence to establish a relationship between the
appellant’s claimed exposure
to RFR and his claimed disabilities. Appellant’s Br. at 24; Reply Br. at 1.
The Secretary argues that
“when read in the context of the surrounding Board discussion” it is clear
that the Board “intended
to convey that it found the preponderance of the evidence to weigh against
a finding of nexus, and
not that it required nexus to be shown by a preponderance of the evidence.”
Secretary’s Br. at 22.
14

There can be no dispute that the Board stated that “[e]ven assuming some
exposure to low
levels of RFR . . . the preponderance of the evidence fails to establish a
relationship to the claimed
radiation exposure and the [v]eteran’s development of macular degeneration
and a broncial mucosa
disorder.” R. at 13. The Court agrees with the appellant that the Board’s
statement suggests that a
nexus had not been established by a preponderance of the evidence. However,
the Court does not
review the Board’s statements in isolation. Rather, it is clear from the
Board’s assessment of the
evidence, which the appellant has not shown to be clearly erroneous, that
the Board (1) found Dr.
Lahr’s favorable opinion not probative; (2) assigned greater weight to the
findings of the VA
examiner and the IMEs; and (3) ultimately concluded that “the
preponderance of the evidence is
against the claims.” R. at 13-18 (emphasis added). As a result, while the
Board may have noted an
incorrect standard, the Court will not require a remand when the Board’s
analysis demonstrates that
it applied the correct legal standard when it found the preponderance of
the evidence against the
claim.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s July 30, 2010, decision is AFFIRMED IN PART and
VACATED IN PART and
the vacated matter is REMANDED to the Board for further proceedings
consistent with this
decision.
DATED: April 13, 2012
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)
15

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