15-22 954
15-22 954
| Board of Vet. App. | May 31, 2017Background
- Veteran served 1950–1953 and 1955–1956 and participated in Operation IVY (confirmed by DoD records and a certificate of participation).
- RO previously denied service connection for gastric/colon polyps (with removal of gastric mass) and Grover’s Disease in a June 2005 rating decision; the Veteran did not timely perfect appeals and the decisions became final.
- In September 2012 the Veteran submitted a private physician’s opinion stating the Grover’s Disease and gastric polyps were “thought to be secondary to radiation exposure” during hydrogen bomb testing; the Veteran also submitted a medical article suggesting Grover’s Disease can be triggered by ionizing irradiation.
- The Board found the post-2005 evidence to be new and material and reopened both claims under 38 U.S.C. § 5108 and 38 C.F.R. § 3.156.
- The Board remanded the reopened claims for development under 38 C.F.R. § 3.311: obtain DoD dose estimates, refer to the Under Secretary for Benefits for radiogenic-disease procedures, and obtain medical opinions (including secondary/aggravation opinions for Grover’s Disease related to service‑connected renal carcinoma residuals).
- The Board also remanded the claims for hearing loss and tinnitus for a new addendum opinion addressing confirmed in-service noise exposure (Operation IVY, artillery, gunner duties), a 2009 study on delayed degeneration after noise exposure, and a fuller rationale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims for gastric polyps and Grover’s Disease should be reopened (new and material evidence) | New medical opinion and article show conditions may be radiogenic and linked to Operation IVY exposure | RO previously found no basis to reopen (2005 denial final) | Reopened: Board found post-2005 evidence new and material and reopened both claims |
| Whether VA must obtain DoD dose estimates and follow § 3.311 procedures for these conditions | Veteran submitted competent medical/scientific evidence that conditions may be induced by ionizing radiation | N/A (RO had earlier incorrectly said no evidence of radiation exposure) | Remanded: Board ordered dose estimate and referral to Under Secretary per § 3.311(b)(4) procedures |
| Whether Grover’s Disease should be granted service connection as secondary to service‑connected renal carcinoma residuals if not radiogenic | Veteran submitted article showing ESRD/hemodialysis can trigger Grover’s Disease; request for secondary nexus opinion | N/A | Remanded: obtain VA opinion on proximate cause/ aggravation by service‑connected kidney condition if radiogenic nexus not found |
| Whether hearing loss and tinnitus are service connected from in‑service acoustic trauma | Veteran asserts noise exposure in Operation IVY and other duties caused current conditions; cited study on delayed degeneration | RO relied on normal hearing at discharge and prior inadequate opinion | Remanded: obtain addendum opinion addressing confirmed in‑service exposure, study on delayed effects, and provide full rationale |
Key Cases Cited
- Jackson v. Principi, 265 F.3d 1366 (Fed. Cir.) (Board must decide whether new and material evidence was presented to reopen a claim)
- Barnett v. Brown, 83 F.3d 1380 (Fed. Cir.) (standards for reopening claims and Board duties in reopening context)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir.) (VA cannot limit radiogenic disease adjudication to an exclusive list)
- Justus v. Principi, 3 Vet. App. 510 (Vet. App.) (presumption of credibility for newly submitted evidence when deciding reopening)