Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1043
ROBERT E. LUNDQUEST, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Robert E. Lundquest appeals through counsel a
December 28, 2018, Board of Veterans’ Appeals (Board) decision denying service connection for
osteoporosis of the bilateral lower extremities and type II diabetes mellitus (DM). Record (R.) at
5-13. For the reasons set forth below, the Court will set aside the December 2018 Board decision
and remand the matters for further development and readjudication consistent with this decision.
I. FACTS
Mr. Lundquest served honorably on active duty in the U.S. Air Force as an instrument
repairman from May 1955 to September 1958. R. at 1148. One month before separation, he was
diagnosed with chronic eczematoid dermatitis. R. at 2716. VA granted service connection for that
disability in January 1959. R. at 2685-86.
In July 1999, Mr. Lundquest sought treatment through VA for diabetic pain, reporting
“increasing depression with difficulty staying asleep[,] anhedonia[,] and eating more.” R. at 2202.
In May 2000, during a VA mental health appointment, Mr. Lundquest reported a 9-pound weight
gain that he attributed to inactivity; he also reported that his anxiety had been “high” and depression
was “worse.” R. at 1007. By October 2000, during a VA mental health appointment, Mr. Lundquest
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expressed that he had “impulsive behaviors as usually in the form of eating too much and what he
is not supposed to.” R. at 2216.
In October 2004, Mr. Lundquest requested an increased disability evaluation for his skin
condition and service connection for, inter alia, a nervous condition (bipolar disorder), DM, and
osteoporosis of the lower extremities. R. at 2444-45. Mr. Lundquest explained:
As an aircraft instrument technician, I was routinely exposed to aviation fuels,140
octane and JP4 [(jet propellant)], naphtha, benzene, acetone, hydraulic fluid, and
mercury. While in service and as an outpatient at VA, I was treated with high doses
of radiation and cortisone for my skin disorder. The cortisone ointment was applied
over open sores on my hands and feet. I believe that the materials I worked with,
including the radioactive instrument dials used at that time, [have] caused my health
to deteriorate . . . Additionally, the radiation therapy and cortisone have
compounded the situation.
R. at 2445. He reported that during service he was given radiation therapy to treat his skin condition
and that, by 1959, a VA dermatologist refused to continue the treatment because he had already
received “too much [radiation].” R. at 2342-43.
The veteran submitted several letters from family members and acquaintances in support
of his claims. R. at 2398, 2401. He also submitted a buddy statement averring that his duties in
service required work with radium-coated instruments and detailing the course of in-service
radiation treatment undertaken for his skin condition. R. at 2361. In addition to these statements,
Mr. Lundquest submitted several articles discussing the effects of radiation and steroid use on bone
loss, skin disorders, and DM. R. at 2365-95, 2403-14.
In May 2005, a VA regional office (RO) issued a decision denying entitlement to service
connection for, inter alia, bipolar disorder, DM, and osteoporosis. R. at 2329-39. Mr. Lundquest
timely filed a Notice of Disagreement. R. at 2306, 2328, 2324-27. In March 2007, the RO issued
a Statement of the Case (SOC) and Mr. Lundquest perfected his appeal to the Board. R. at 2175-
99, 2173.
In December 2009, Mr. Lundquest submitted a statement reasserting that the skin condition
on his hands was treated with radiation therapy on multiple occasions in service. R. at 2027. He
also reported prolonged exposure to mercury during service. R. at 2031.
In February 2011, a VA psychiatrist observed that Mr. Lundquest had “significant low
periods,” as well as problems with anger and irritability. R. at 1755. The psychiatrist further
indicated that Mr. Lundquest exhibited impulsivity and that he would “neglect his [DM] by
overeating.” R. at 1754.
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Upon VA mental health examination in September 2011, the VA examiner diagnosed
bipolar disorder and insomnia. R. at 1814. The examiner also documented the veteran’s report of
irritability, anxiety, and mood changes, which the examiner characterized as “a hallmark” of a
bipolar condition. Id. In August 2014, Mr. Lundquest underwent VA medical examinations for his
DM and mental condition, and the examiner opined that Mr. Lundquest’s bipolar disorder was less
likely than not caused by use of corticosteroids for his service-connected skin condition. R. at
1622; see also R. at 1626-29 (DM examination); R. at 1622-25 (mental examination). The other
VA examiner opined that Mr. Lundquest’s DM was less likely than not related to steroid
medication for his service-connected skin condition, R. at 1633, because he had limited use of
steroids and the examiner cited to a medical article stating that “[g]enerally, local and systemic
adverse effects do not often occur with the use of low potency topical corticosteroids.” R. at 1629.
The examiner indicated that Mr. Lundquest had a history of chronic pancreatitis, a well-known
risk factor for the development of DM. Id.
In February 2015, Mr. Lundquest reported that for over 20 years, he was prescribed
Paroxitine to treat anxiety, nightmares, and depression; he further stated that he had previously
relied on alcohol to get to sleep. R. at 1565. In March 2015, Mr. Lundquest detailed dates and
locations of radiation treatment received through VA for his skin condition, R. at 1502, and
reiterated his claim that his work as an aircraft instrument repairman involved daily exposure to
radiation from the instrument dials, R. at 1503. In April 2015, he submitted a radiation risk activity
information sheet, which repeated these claims. R. at 1505-06.
In May 2016, Mr. Lundquest’s representative argued that service connection for DM should
be considered as secondary to the veteran’s psychiatric condition because “chronic sleep
impairment [associated with his psychiatric condition] is noted to cause both obesity and [DM].”
R. at 1103.
In June 2016, the Board issued a decision granting service connection for Mr. Lundquest’s
acquired psychiatric disorder. R. at 1078-93. The Board remanded the veteran’s claim for service
connection for osteoporosis pending issuance of an SOC, R. at 1089, and remanded the claim for
service connection for DM for an addendum opinion by the 2014 VA examiner, R. at 1089-90.
The Board cited medical evidence suggesting that Mr. Lundquest’s DM was poorly controlled due
to his diet and that his eating behaviors were associated with depression and impulsivity. R. at 1089.
4In light of this evidence, the Board sought an opinion to address whether his DM was caused
or aggravated by his service-connected psychiatric disability. Id.
In August 2016, a VA examiner opined that it was “much less” likely than not that the
veteran’s DM was caused by his psychiatric disorder, because DM is caused either by an
insufficient production of insulin or by insulin resistance. R. at 888-89. As to aggravation, the
examiner stated, “[t]here could be the possibility that the veteran’s recently granted serviceconnection
for his [bipolar] neuropsychiatric disorder might have influenced his eating habits, but
for how long and to what extent and with what effect, and with what results after clinical
interventions[,] we have no answers.” Id. The examiner noted that it was “conceivable” that the
veteran “consumed more food than normal” while depressed, but also reasoned that it was
“conceivable” that he was not compliant with medication; he further noted that the veteran did not
monitor his blood sugar levels daily as recommended. Id. As a result, the examiner concluded, “we
are left with much less information than would be necessary to support a probability of 50% of
greater [that the veteran’s DM was worsened by his service-connected mental condition].” Id.
In February 2017, the Board remanded the claims for service connection for DM and
osteoporosis. R. at 860-67. The Board found that the August 2016 examiner only considered
whether Mr. Lundquest’s DM was secondary to his psychiatric condition and did not opine as to
whether the DM was caused or aggravated by his service-connected skin condition. R. at 862. The
Board noted that the August 2014 VA examiner had previously opined that Mr. Lundquest’s DM
was less likely than not proximately due to or the result of his skin condition; however, the 2014
examiner did not address the aggravation prong of secondary service connection. Id. The Board
addressed Mr. Lunquest’s contention that he was exposed to ionizing radiation, but observed that
he did not participate in atmospheric nuclear weapons testing nor had he received exposure from
the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946; that neither DM
nor osteoporosis is a radiogenic disease as defined by 38 C.F.R. § 3.311(b)(2); and that it was
unnecessary to conduct additional development involving a request for dose information under
§ 3.311(a)(2). R. at 862-63. However, the Board ordered a medical opinion to address whether Mr.
Lundquest’s DM or osteoporosis was caused by in-service chemical exposures, and remanded the
claim for osteoporosis for VA to provide an examination. R. at 862-63.
In May 2017, a VA examiner opined that it was less likely than not that the veteran’s
osteoporosis was incurred in or caused by service, R. at 632, and less likely than not related to
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steroid use or exposure to radiation or toxic chemicals, R. at 633-34. The examiner stated that
osteoporosis is an endocrine disorder “most commonly [] caused by lower hormone production
associated with older age,” and found it more likely that Mr. Lundquest’s osteoporosis was related
to aging, noting that the veteran was diagnosed in 2006 at age 68. R. at 632. The examiner
considered but discounted chemical exposure, food intake, cigarette smoking, and high-dose
ionizing radiation as potential precursors to osteoporosis. Id. The examiner separately considered
the impact of steroid use, but concluded that “low potency topical steroids,” such as those used by
Mr. Lundquest “are not known to have systemic risks” when used occasionally. Id.
In August 2017, a VA examiner opined that it was less likely than not that the veteran’s
DM was caused or aggravated by steroid use or in-service exposures because: the “single most
common risk factor” for DM is obesity; Mr. Lundquest’s documented history of consistently high
body mass index suggests that he has been overweight or obese for a long period and “an obese
body habitus is NOT related to service[—]it is due to excess caloric intake”; and obesity acts to
cause DM. R. at 489. In considering the relationship between Mr. Lundquest’s DM and his serviceconnected
skin condition, the examiner similarly emphasized the connection between obesity and
DM. R. at 488.
The examiner also remarked that Mr. Lundquest had a “well-documented history of longstanding”
heavy alcohol use. R. at 485. The examiner opined that it was because of alcohol abuse
that Mr. Lundquest developed chronic pancreatitis and obesity. Id. The examiner concluded by
noting that chronic pancreatitis is “a well[-]known risk factor for the development of DM.” Id.
In October 2017, the Board issued a decision remanding both claims, in part, to obtain
addendum medical opinions. R. at 470-75. Specifically, the Board ordered the RO to (1) obtain an
addendum opinion to the August 2017 osteoporosis examination addressing whether Mr.
Lundquest’s osteoporosis was aggravated by his service-connected skin condition, to include the
use of topical steroid medication; and (2) obtain an addendum opinion to the August 2017 DM
examination addressing Mr. Lundquest’s statements reporting in-service exposure to various
chemicals in the course of his duties as an aircraft instrument repairman. R. at 472.
In June 2018, Mr. Lundquest underwent a VA medical examination to assess both his DM
and osteoporosis. R. at 105-10. The examiner opined that it was more likely than not that Mr.
Lundquest’s DM was caused by “a combination of his obese body habitus which causes insulin
resistance, his chronic pancreatitis resulting from his well-documented history of heavy [alcohol]
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use, and the normal course of aging.” R. at 107. The examiner concluded that the veteran’s DM
was not caused or aggravated by his in-service chemical exposures. Id. The examiner further
opined that neither the veteran’s skin condition nor his associated topical steroid use aggravated
his osteoporosis. R. at 109.
In the December 2018 decision on appeal, the Board denied entitlement to service
connection for osteoporosis of the bilateral lower extremities and service connection for DM. R.
at 5-13. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Lundquest’s appeal is timely and the Court has jurisdiction to review the December
2018 Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The duty to assist includes providing a medical examination or obtaining a medical opinion
based upon a review of the evidence of record if VA determines it is necessary to decide the claim.
38 C.F.R. § 3.159(c)(4) (2019); see 38 U.S.C. § 5103A(d). When the Secretary undertakes to
provide a veteran with a VA medical examination or opinion, he must ensure that the examination
or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical
examination or opinion is adequate “where it is based upon consideration of the veteran’s prior
medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), “describes
the disability . . . in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be
a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and
“sufficiently inform[s] the Board of a medical expert’s judgment on a medical question and the
essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). See also
Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (“[A]n adequate medical report must rest on
correct facts and reasoned medical judgment so as [to] inform the Board on a medical question
and facilitate the Board’s consideration and weighing of the report against any contrary reports.”);
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination report must
contain not only clear conclusions with supporting dating, but also a reasoned medical explanation
connecting the two.”).
The Board’s determinations regarding service connection, the adequacy of a medical
examination or opinion, and whether an issue is reasonably raised by the record are findings of
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fact subject to the “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see D’Aries v.
Peake, 22 Vet.App. 97, 104 (2008); Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub
nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Nolen v. Gober, 14 Vet.App. 183, 184
(2000); Davis v. West, 13 Vet.App. 178, 184 (1999); see also Ardison, 6 Vet.App. at 407 (holding
that the Board errs when it relies on an inadequate medical examination). “A factual 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.'” Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)).
In rendering its decision, the Board is required to provide a written statement of reasons or
bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to
understand the precise basis for the Board’s decision and to facilitate review in this court. Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze
the credibility and probative value of evidence, account for evidence that it finds persuasive or
unpersuasive, and provide reasons for rejecting any material evidence favorable to the claimant.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996)
(table).
III. ANALYSIS
Generally, establishing service connection requires medical or, in certain circumstances,
lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or
injury; and (3) a link between the claimed in-service disease or injury and the present disability.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza, 7 Vet.App. at 506. Secondary
service connection will be granted if a disability is proximately due to or the result of a serviceconnected
disease or injury or aggravated by a service-connected disease or injury. See Allen v.
Brown, 7 Vet.App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2019).
In its decision, the Board denied service connection on a direct basis for Mr. Lundquest’s
disabilities because it found that as to each condition, the third Shedden element was not met. See
R. at 8 (osteoporosis); R. at 10 (DM). The Board also considered several theories of secondary
service connection for Mr. Lundquest’s disabilities. These theories of service connection included
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whether osteoporosis was secondary to Mr. Lundquest’s service-connected dermatitis, as well as
whether osteoporosis was caused by in-service chemical, steroid, or radiation exposure. R. at 8-
The Board similarly considered whether the veteran’s DM was caused by chemical or radiation
exposure in service, and whether DM was caused or aggravated by the service-connected skin
condition or psychiatric disability. R. at 10-12. The Board rejected all of these theories of
secondary service connection.
A. DM Caused or Aggravated by Obesity That Is Secondary to the Service-Connected
Psychiatric Condition
The parties agree that the Board failed to consider a reasonably raised theory of secondary
service connection for the veteran’s DM. Appellant’s Brief (Br.) at 10-15; Secretary’s Br. at 17-21.
Specifically, the Secretary concedes that the record reasonably raised the issue of whether the
veteran’s psychiatric condition and associated impulsivity led to overeating, leading to obesity and
DM. Secretary’s Br. at 19. The Court agrees.
A 2017 VA General Counsel (VAGC) precedent opinion determined that “[o]besity may be an ‘intermediate step’ between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a),” VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017), at 2, ¶ 5. The VAGC explained that, in these cases, the Board would be required to resolve (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether obesity as a result of the service-connected disability was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. Id. at 9-10, ¶ 15. See also Walsh v. Wilkie, Vet.App., 2020 WL 878798 (Feb. 24, 2020) at *5 (holding that G.C. Prec. 1-2017 requires the Board to consider aggravation in the context of these claims when the theory is explicitly raised by the veteran or reasonably raised by the record).
Mr. Lundquest’s claim for secondary service connection for DM falls squarely within the
ambit of G.C. Prec. 1-2017. Similar to the hypothetical identified in that opinion, Mr. Lundquest
has alleged and submitted evidence that his service-connected psychiatric disability led to
impulsivity and overeating, which led to weight gain. See, e.g., R. at 889, 1007, 1565, 2216, 2202.
Indeed, the 2016 Board remand specifically acknowledged that “treatment records not[e] that the
[v]eteran attributed his overeating to his bipolar disorder-related impulsivity.” R. at 1090.
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The Board is obliged to address all theories of service connection raised either by a liberal
reading of a veteran’s submissions or by the contents of the record. Robinson 21 Vet.App. at 552-
56; see DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011). The record raised the applicability of G.C.
Prec. 1-2017 and the Board was dutybound to address the principles of secondary service
connection espoused therein. See 38 U.S.C. § 7104(c) (“The Board shall be bound in its decisions
by the regulations of the Department, instructions of the Secretary, and the precedent opinions of
the chief legal officer of the Department.”); Molitor v. Shulkin, 28 Vet.App. 397, 408 (2017);
Robinson, 21 Vet.App. at 552. The Board’s failure to do so rendered inadequate its reasons or bases
for denying secondary service connection for DM, justifying remand on that issue. See Molitor,
28 Vet.App. at 410.
B. Adequacy of the August 2016 VA Opinion as to Service Connection for DM
Mr. Lundquest argues that the August 2016 VA opinion was inadequate for the Board to
adjudicate the issue of a relationship between his psychiatric condition and obesity. Appellant’s
Br. at 13-14. The Secretary concedes that the August 2016 VA opinion was inadequate because it
was speculative. Secretary’s Br. at 22; see Jones v. Shinseki, 23 Vet.App. 382, 391 (2010). The
Court agrees that remand is warranted to correct this deficiency.
In June 2016, the Board remanded Mr. Lundquest’s claim for a VA examiner to opine
whether the veteran’s psychiatric condition aggravated his DM and requested that the examiner
specifically address “treatment records noting that the [v]eteran attributed his overeating to his
bipolar disorder-related impulsivity” and “the veteran’s report . . . that he was reluctant to test his
blood sugar due to his [service-connected] hand skin condition.” R. at 1090. The August 2016
examiner did not address aggravation, but rather opined only that there was insufficient
information available to support a conclusion regarding “for how long and to what extent, and with
what effect, and with what results after clinical interventions” the veteran’s psychiatric disability
may have influenced his eating habits. R. at 889. At bottom, the August 2016 examiner’s opinion
is speculative and fails to specifically address whether the veteran’s psychiatric condition
aggravated his DM in compliance with the Board’s remand order. As such, the examiner’s opinion
is not adequate evidence on which to base the Board’s denial of service connection for DM.
Accordingly, the Court agrees with the parties and concludes that the Board clearly erred
in determining that the August 2016 medical opinion was adequate for adjudication purposes. See
D’Aries, 22 Vet.App. at 104. The Board thus erred in relying on that opinion to deny the claim.
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See Ardison, 6 Vet.App. at 407 (holding that the Board errs when it relies on an inadequate medical
examination report of opinion). Remand is warranted to correct that error. See Tucker v. West, 11
Vet.App. 369, 374 (1998).
C. Adequacy of the May 2017 VA Medical Opinion as to Service Connection for Osteoporosis
Mr. Lundquest also argues that the Board improperly relied on the May 2017 VA medical
opinion to conclude that there was no basis for a grant of service connection for his osteoporosis.
Appellant’s Br. at 8-10. The Court agrees.
Notably, the May 2017 examiner opined that “the veteran . . . was not diagnosed with
osteoporosis until 2006, at age 68 [and f]or this reason, neither the chemical nor radiation exposure
is likely to have aggravated his osteoporosis.” R. at 633-34. As a foundation for this opinion, the
examiner cited a May 2006 VA treatment record that reflected a diagnosis of osteoporosis. R. at 1089. However, the examiner’s opinion mischaracterizes the evidence of record. The 2006 treatment
record did not diagnose osteoporosis; rather, it indicated a history of osteoporosis. See R. at 2268
(PMH [(Past Medical History)] osteoporosis). Moreover, the veteran requested service connection
for osteoporosis in October 2004, R. at 2445, which suggests that his osteoporosis symptoms date
back at least to that time. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting
general competence of laypersons to testify as to symptoms, but not to provide a medical
diagnosis). In fact, it is unclear from the current record how long he has been diagnosed with
osteoporosis.
The Court recognizes that there is no reasons-or-bases requirement imposed on examiners,
Monzingo, 20 Vet.App. at 105; Acevedo, 25 Vet.App. at 293; however, the probative value of a
medical opinion derives from the “factually accurate, fully articulated, sound reasoning for the
conclusion,” Nieves-Rodriguez, 22 Vet.App. at 304. To the extent that the examiner’s opinion
forecloses the possibility that Mr. Lundquest’s osteoporosis diagnosis had any relationship to
service, it appears that opinion is based on Mr. Lundquest being diagnosed in 2006, a fact that does
not appear to be supported by the evidence of record.
Therefore, the Court agrees with Mr. Lundquest that the Board erred in relying on the May
2017 opinion either because the opinion is based on inaccurate facts, see Reonal v. Brown,
5 Vet.App. 458, 460-61 (1993), or because it is not accompanied by rationale sufficient to inform
the Board of the expert judgment that served as the basis for the opinion, see Monzingo,
26 Vet.App. at 105; Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 304.
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Accordingly, the Court also concludes that the Board failed to provide adequate reasons or bases
for its reliance on the May 2017 opinion and its determination that Mr. Lundquest’s osteoporosis
was not caused or aggravated by service or by a service-connected condition. See Allday v.
Brown, 7 Vet.App. at 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. Therefore, a remand of this
claim is warranted. See Tucker, 11 Vet.App at 374.
D. Service Connection for Osteoporosis Based on Exposure to Ionizing Radiation
Finally, Mr. Lundquest argues that the Board failed to provide adequate reasons or bases
for its conclusion that his osteoporosis was not related to the claimed in-service radiation exposure,
Appellant’s Br. at 20-23, and its conclusion that VA satisfied its duty to assist with respect to
obtaining an expert opinion, Appellant’s Br. at 22-23. The Secretary argues to the contrary.
Secretary’s Br. at 15-17. Mr. Lundquest’s arguments are persuasive.
A veteran may establish service connection for certain disabilities claimed as due to inservice
exposure to ionizing radiation in one of three ways: (1) via the presumption of service
connection for radiation-exposed veterans under 38 U.S.C. § 1112(c) and 38 C.F.R.
§ 3.309(d)(3)(ii); (2) by meeting certain conditions specified 38 C.F.R. § 3.311(b) for veterans
with radiogenic diseases; or (3) by satisfying the elements of direct service connection. See Rucker
v. Brown, 10 Vet.App. 67, 71 (1997) (citing Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir.
1994)).
Mr. Lundquest does not qualify for the § 3.309 regulatory presumptions because he did not
participate in a “radiation-risk activity.” 38 C.F.R. § 3.309(d)(3)(ii).
As to § 3.311(b), Mr. Lundquest’s disabilities are not on the list of “radiogenic disease[s].”
See 38 C.F.R. § 3.311(b)(2). Although § 3.311 provides that, for conditions not on the list, “VA
shall nevertheless consider the claim under the provisions of this section provided the claimant has
cited or submitted competent scientific or medical evidence that the claimed condition is a
radiogenic condition,” 38 C.F.R. § 3.311(b)(4), the Board found that Mr. Lundquest had not
submitted sufficient evidence to establish that radiation exposure would cause the disabilities from
which he suffers. R. at 9-10. In making this finding, the Board relied heavily on its conclusion that
the May 2017 and June 2018 VA examiners provided adequate medical opinions. Id.
As discussed, the Court has found that the May 2017 opinion is not adequate to adjudicate
the osteoporosis claim because it relies on an unsupported factual premise.
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Moreover, in relying primarily on the May 2017 examiner’s opinion, the Board overlooked
evidence of record relevant to whether radiation may have caused or contributed to Mr.
Lundequest’s osteoporosis. See R. at 2365-95, 2403-14 (medical journal articles); R. at 2342-43
(veteran’s statement); R. at 2361 (buddy statement). Most significantly, however, the Board failed
to appreciate that the May 2017 examiner indicated that “radiation . . . [has] been shown to alter
the activity of bone osteoclasts, thereby leading to osteopenia or osteoporosis.” R. at 632. Although
the examiner’s ultimate conclusion was based on an inaccurate factual premise, her statement
detailing the effects of radiation on the development of osteoporosis may constitute competent
scientific or medical evidence under § 3.311(b)(4) that Mr. Lundquest’s osteoporosis is a
radiogenic disease. Thus, remand of the claim for service connection for osteoporosis based on
exposure to ionizing radiation is required.
Accordingly, the Court concludes that remand is warranted for each of the claims on
appeal. See Tucker, 11 Vet.App. at 374; Ardison, 6 Vet.App. at 407. Given this disposition, the
Court need not address Mr. Lundquest’s other arguments that the Board erred in failing to address
reasonably raised theories of service connection for diabetes and osteoporosis as secondary to the
veteran’s psychiatric condition and alcohol use. See Appellant’s Br. at 10-15. Those theories have
now been expressly raised and the Board will therefore be obligated to address them on remand.
See DeLisio, 25 Vet.App. at 53 (“[T]he Secretary generally must investigate the reasonably
apparent and potential causes of the veteran’s condition and theories of service connection that are
reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing. “);
Robinson, 21 Vet.App. at 553.
The veteran is free, on remand, to present those arguments, as well as any additional
arguments and evidence, to the Board in accordance with Kutcherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). See Kay v Principi, 16 Vet.App. 529, 534 (2002). The Court
reminds the Board that “[a] remand is meant to entail a critical examination of the justification for
[the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed
in an expeditious manner in accordance with 38 U.S.C. § 7112.
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IV. CONCLUSION
Upon consideration of the foregoing, the December 28, 2018, Board decision is SET
ASIDE and the matter is REMANDED for development and readjudication consistent with this decision.
DATED: April 24, 2020
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
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