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 10 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. SeeGolz 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 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 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. =========== ---------------------------------------------------- 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 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 "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